Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 11, 2022
CASE NO(S).: OLT-21-001644
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: Misko Kancko
Appellants: Chris Greco and Grace Wang
Subject: Minor Variance
Property Address/Description: 64 Lovers Lane
Variance from By-law: Zoning By-law No. 87-57, as Amended by By-law No. 18-105
Municipality: City of Hamilton
Municipal File No.: AN/A-21:298
OLT Lead Case No.: OLT-21-001644
OLT Case No.: OLT-21-001644
OLT Case Name: Greco v. Hamilton (City)
Heard: March 16, 2022 via Video Hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Chris Greco and Grace Wang (collectively the “Appellants”) | Self-represented |
| Misko Kancko (“Applicant”) | Erica Lamont* Nik Miskovic |
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
BACKGROUND
1The Appellants are two immediate neighbours of the Applicant. They have appealed a decision by the City’s Committee of Adjustment (“Committee”) authorizing variances reducing five lot setbacks to permit the construction of an L-shaped home and an inground backyard pool (“Proposed Development”) on the Applicant’s property municipally known as 61 Lover’s Lane, Ancaster (“Subject Property”). The Subject Property is in the Clearview Neighbourhood of the former Town of Ancaster and is a large corner lot with a frontage of 27.4 metres on Lover’s Lane and with a flankage yard on Thornwood Drive of 45.7 metres.
2To permit the Proposed Development on the Subject Property, the Applicant submitted a minor variance application to the City on July 29, 2021 requesting the following five reduced minimum setbacks from the minimums required by the Zoning By-law No. 87-57 of the Former Town of Ancaster (“ZB”):
| Setback | Minimum Required Setback under the ZB | Reduced Minimum Setback Requested | |
|---|---|---|---|
| 1 | Front Yard Setback | Between 13.84 metres to 20.74 metres | 9.15 metres |
| 2 | Northerly (Interior) Side Yard Setback | 2.74 metres | 1.90 metres |
| 3 | Southerly (Flankage) Side Yard Setback | 6 metres | 4.7 metres |
| 4 | Rear Yard Setback | 16 metres | 1.8 metres |
| 5 | Accessory Building (Inground Pool) Setback | 7.5 metres | 3.8 metres |
3Figure 14a in Attachment “1”, shows the as of right maximum building envelope and the proposed building envelope for the proposed home. The proposed home in the plans submitted to the City of Hamilton would be a two storey, L-shaped structure of 446.7 square metres (“Proposed Home”). It will front onto Lover’s Lane with the shorter part of the L and then follow Thornwood Avenue with the long part of the L. The pool will be in the corner of the yard surrounded by the Proposed Home on two sides and the neighbouring properties on the other two sides. (“Proposed Pool”)
4On Lover’s Lane immediately adjacent to the Subject Property, there is a lot with a one storey residence belonging to one of the Appellants, Ms. Wang (“Wang Property”). The proposed three car attached garage included in the Proposed Home would be adjacent to the Wang Property. On Thornwood Avenue immediately adjacent to the Applicant’s property, there is a lot with a one and a half-storey residence belonging to the other Appellant, Mr. Greco (“Greco Property”) and the rear most part of the Proposed Home would be adjacent to Greco Home. Both the Greco Property and the Wang Property are separated from the Subject Property by a line of trees and other vegetation.
5The Subject Property is designated as Neighbourhoods in the City’s Official Plan (“OP”) which permits single family detached dwellings. It is zoned “Existing Residential” (ER), in the ZB.
6After reviewing the Minor Variance application, the City’s Planning and Economic Development Department prepared a report dated September 9, 2021 for the Committee recommending the approval of the Minor Variances (“City Planning Report”) since in the view of the planner, the application complies with section 45(1) of the Planning Act (“Act”). Based on this report, the Committee authorized the Minor Variance application on September 9, 2021. On September 20, 2021, Appellants, Ms. Wang and Mr. Greco, the respective owners of the Wang Property and the Greco Property filed separate appeals of the Committee decision with the Ontario Land Tribunal.
APPLICATION FOR AN ADJOURNMENT AND THE HEARING
7A hearing was held on March 16, 2022. The Applicant filed a late request for an adjournment with the Tribunal which was refused on the morning of March 15, 2022. The Applicant retained Erica Lamont, as counsel on March 15, 2022, and she filed a second written motion requesting an adjournment on March 16, 2022 immediately before the hearing. Ms. Lamont appeared at the beginning of the hearing and advised the Tribunal that she had only been provisionally retained.
8The Tribunal received oral submissions from Ms. Lamont and the Appellants regarding the motion for an adjournment. Ms. Lamont advised the Tribunal that she had been provisionally retained the day before the hearing by the Applicant, did not have adequate time to prepare for the hearing and the Applicant would be prejudiced if required to proceed. The adjournment request was opposed by the Appellants since they were ready to proceed, had expended funds to have a planner attend at the hearing and had taken time off from work to attend. The Tribunal asked the Appellants to identify the costs that they would throw away if the Tribunal did not proceed with the hearing. The Tribunal stood down to allow the Appellants to provide the figure for their thrown away costs.
9Upon resumption of the hearing, Ms. Lamont advised that her retainer had ended. Mr. Miskovic, a representative with little or no experience before the Tribunal, took over representing the Applicant. The motion for an adjournment was withdrawn and the parties proceeded with the hearing.
10The Tribunal canvassed the parties for information on whether notice had been appropriately given. There were no concerns expressed by the parties regarding notice.
11After asking the parties for their submissions, the following individuals, who are within the immediate neighbourhood, requested and were granted participant status:
- James Thomson;
- Kimberley Thomson;
- Jeremy Roberts;
- Irwin Walker;
- Susan Walker;
- Mike Robitaille;
- Edward Lehockey; and
- Charlie Wang (collectively “the Participants”).
12The Participants were directed by the Tribunal to submit their written statements within five (5) business days, on or before 4:30 p.m. on Wednesday, March 23, 2022. Those Participants who filed statements with the Tribunal were not supportive of the Proposed Development.
13After the departure of Ms. Lamont, the Tribunal was dealing with a situation where the Appellants were self-represented and the Applicant was represented by Mr. Miskovic, who had little, if any experience, before the Tribunal. The Appellants engaged a planning witness, Mr. Allan Ramsay, who prepared a Witness Statement. The Applicant had not engaged a planning witness and did not issue a summons to the City planner, who had prepared the City Planning Report which supported the Minor Variance Application. The Appellants, the Applicant and Mr. Miskovic presented evidence. It was necessary to provide extensive guidance to the parties regarding the nature of the proceedings and appropriate questions for cross-examination.
14The Applicant had great difficulty understanding why the Appellants had any right to appeal the Committee decision and questioned why the Tribunal had any jurisdiction over this matter at all. The Tribunal patiently explained its jurisdiction to the Applicant. The parties were also told that the proceedings were a hearing de novo of the minor variance application and the Applicant is required to prove his case that the minor variance application should be allowed. After opening submissions, the Appellants proceeded to present their case since the Applicant had no oral planning evidence to present.
15Mr. Ramsay was properly qualified to testify in the field of planning before the Tribunal. The Tribunal found his evidence to be clear and uncontradicted. None of the questions posed during cross-examination by the Applicant caused the Tribunal to doubt his testimony. The Tribunal found that he answered all questions posed by the Tribunal comprehensively and clearly.
16The only planning evidence that the Applicant presented was the City Planning Report supporting the application. The City Planning Report was admitted into evidence by the Tribunal as a courtesy, but little weight can be given to it since the Planner who prepared the report did not appear to testify at the hearing and thus could not be cross-examined.
IMPORTANT ISSUES FOR RESOLUTION BY THE TRIBUNAL
17After listening to the evidence and the submissions of the parties, the Tribunal is of the view that the most important issue to be determined by the Tribunal is whether the Proposed Development is compatible with the neighbourhood and whether it will result in any undue adverse impacts. Each of the requested variances must be reviewed for compatibility and whether there is an unacceptable adverse impact and then assessed using the tests for a minor variance application under section 45(1) of the Act.
THE NEIGHBOURHOOD
18The Subject Property is in the Clearview Neighbourhood, an established residential area having the following characteristics:
- This is an area of single detached dwellings on large lots. For example, those along Thornwood Drive in the range of 1,672 square metres and 3,344 square metres with frontages of 30.4 metres. While most of the lots along Lover’s Lane range in size between 1,375 square metres and 2300 square metres with frontages of between 22.9 metres to 27.4 metres. The neighbourhood lotting pattern and size is similar to the pattern on these two streets.
- The dwellings were built within two distinct periods. The original dwellings were built in the 1940s, 1950s and 1960s and are modest to large in size having generous building setbacks. The newer buildings were built within the past 10-20 years and are larger in size.
- With few exceptions, the newer development has been well integrated into the neighbourhood.
19In summary, the existing scale and character of the area is an area having large lots, low lot coverages and generous building setbacks.
OFFICIAL PLAN
20Mr. Ramsay testified that the OP provides the following guiding principles for considering new developments:
- Neighbourhoods are expected to evolve with new development and not stay static;
- New development must enhance and respect the character of existing Neighbourhoods;
- The Urban Design Principles require that new development should maintain, enhance and respect the character of an area;
- The new development should be sensitive to community identity and enhance streetscapes and amenity areas with consistent setbacks; and
- Building placements should complement the existing Neighbourhood and fit harmoniously with existing massing and complement existing massing patterns.
21To summarize, the OP requires that new development needs to be respectful of the character of the neighbourhood and be compatible with it.
ZONING BY-LAW
22Mr. Ramsay testified ZB sets zoning performance standards based on the guiding principles of the OP. These performance standards were recently modified so that rather than having a one size fits all approach, the standards adjust to the surrounding circumstances through a formula used for each of the setback standards in the ZB.
FRONT YARD SETBACK AND FLANKAGE YARD SETBACK
23The planning evidence was essentially the same related to the proposed reductions requested for the Front Yard Setback on Lovers Lane and the Flankage Yard Setback on Thornwood Drive. The reduced building setbacks on both streets for the Proposed Home will result in an inconsistent streetscape on Lovers Lane and Thornwood Drive. The Proposed House will protrude in front of the Wang house on Lovers Lane by 8.23 m and project in front of the Greco house on Thornwood Drive by 6.48 metres. This will make the owners of both the Wang Property and the Greco Property feel boxed in.
24The Tribunal finds that the Proposed House will predominate and be an imposing structure over both streets resulting in an undue adverse impact on each of the streetscapes and the owners of the Greco Property and the Wang Property. This is inconsistent with both the intent and purpose of the OP which promotes compatibility and the ZB which seeks to establish a consistent streetscape. These changes are thus undesirable and not minor due to the unacceptable adverse impact.
NORTHERLY (INTERIOR) SIDE YARD SETBACK AND THE REAR YARD SETBACK
25The planning evidence was essentially the same regarding the northern (Interior) Side Yard Setback which affects the Wang Property and the Rear Yard Setback which affects the Greco Property. In both cases, the façade of the two-storey structure will be close to the lot line of both the Wang Property and the Greco Property. There would not be an appropriate transition to scale to the two neighbouring properties where there is a one storey home on the Wang Property and a one and a half storey home on the Greco Property. There will be massing and overshadowing issues with both properties resulting in an unacceptable adverse impact. The owners of both the Wang Property and Greco Property will feel boxed in.
26Both Mr. Greco and Ms. Wang identified in their evidence that they are having drainage issues currently. The Hamilton Engineering Department in its review of the application identified possible drainage concerns with the reduction in the side-yard and rear-yard setbacks. The planning evidence identified that an appropriate tree study and drainage plan needs to be prepared to address any potential issues related to these matters.
27The Tribunal finds that the proposed reduced side and rear yard setbacks are inconsistent with both the intent and purpose of the OP which promotes compatibility and the ZB which seeks to limit overshadowing and massing issues between neighbouring properties. These changes are thus undesirable and not minor due to the unacceptable adverse impact from the possible drainage issues, and massing and overshadowing issues resulting from the Proposed House.
REDUCED POOL SETBACKS
28The planning evidence was that the reduced setback for the pool will create an undue adverse impact regarding the enjoyment of the abutting rear yard amenity areas due to privacy concerns related to the pool which will be placed too close to both the property lines for both the Greco Property and the Wang Property.
29The Tribunal finds that the proposed reduced setbacks are inconsistent with both the intent and purpose of the OP which promotes compatibility and the ZB which seeks to conserve privacy between neighbouring properties. These changes are thus undesirable and not minor due to the unacceptable adverse impact.
30In summary the Tribunal finds that the minor variance application for all five variances fails to meet the requirements of the section 45(1) of the Act and this appeal must be allowed due to the overall undue adverse impact caused by the Proposed Development.
ORDER
31THE TRIBUNAL ORDERS that the appeal is allowed and the variances to Zoning By-law No. 87-57 of the Former Town of Ancaster are not authorized.
“A. Cornacchia”
A. CORNACCHIA
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.