Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 21, 2022
CASE NO(S).: OLT-21-001288
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Appellant: Alicia Woods
Applicant: 5010889 Ontario Inc.
Subject: Minor Variance
Property Address/Description: 21 Uphill Rd.
Variance from By-law: By-Law 2010-100Z
Municipality: City of Sudbury
Municipal File No.: A0082/2021
OLT Case No.: OLT-21-001288
OLT File No.: OLT-21-001288
OLT Case Name: Woods v. Sudbury (City)
Heard: March 29, 2022 via video hearing
APPEARANCES:
Parties
Representative
5010889 Ontario Inc.
Shawn Rossi
Alicia Woods
Self-Represented
MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER and ERIC S. CROWE ON MARCH 29, 2022 AND ORDER OF THE TRIBUNAL
BACKGROUND
1The matter before the Tribunal was an appeal by Alicia Woods (the “Appellant”) concerning the decision of the Committee of Adjustment (the “COA”) to approve the minor variance requests for the property owned by Shawn Rossi (the “Applicant”) at 21 Uphill Rd, (the “Subject Property”). The Subject Property is zoned Seasonal Limited Service (“SLS”) under Zoning By-Law No. 2010-100Z, (the “ZBL”) as amended.
2The variances being sought would facilitate construction of a new seasonal dwelling with a covered deck on the Subject Property that has water frontage on Long Lake in Lively. The lands also have public road frontage on Uphill Rd. The lands form a legal existing undersized lot of record having approximately 15 metres (“m”), (49.21 feet (“ft”)) of lot frontage on Uphill Rd and Long Lake whereas 45 m (147.64 ft) is required in the ‘'SLS” Zone. The residential dwellings in the general area tend to have similar interior side yard setbacks on similarly legal existing undersized lots of record.
CONTEXT OF THE APPLICATION
3The Applicant filed a minor variance application to the COA and the applicant appeared before the COA on July 21, 2021 for the minor variances sought. The minor variances requested were for:
An interior side yard setback of 1.8 m whereas a 3 m setback is required.
Eaves to encroach 0.6 m into the required yard whereas eaves may only encroach 1.2 m into the required yard but not closer than 0.6 m to the lot line.
4At the COA meeting, the Committee asked the Applicant questions concerning their application. The Applicant stated that the City Development engineering would not allow the dwelling to be on the existing footprint as the existing dwelling was condemned. The Applicant explained that they are repositioning the home on the current layout of the land, keeping the same slope but pushing it forward away from the original home. The Applicant had followed the recommendations of City Staff as to the positioning of the new Dwelling on the Subject Property. No other concerns were brought forward that could not be addressed in the Building Permit Application process. Staff recommended that the variances be approved as they are minor, appropriate development for the area and the intent of both the Official Plan (“OP”) and ZBL are maintained.
5The COA made the decision on July 21, 2021, that the minor variances be approved as listed below:
THAT the application by:
5010889 ONTARIO INC. the owner(s) of PIN 73374 0156, Parcel 12615, Lot(s) 44, Subdivision M-297, Lot 2, Concession 1, Township of Waters, 21 Uphill Road, Lively for relief from Part 4, Section 4.2, Table 4.1 and Part 9, Section 9.3, Table 9.3 of By-law 2010-100Z, being the Zoning By-law for the City of Greater Sudbury, as amended, to facilitate the construction of a two-storey seasonal dwelling and attached covered deck providing eaves to encroach 0.6m into the required yard, where eaves may only encroach 1.2m into the required yard but not closer than 0.6m to the lot line, and also, a minimum side yard setback of 1.8m, where 3.0m is required, be granted.
6Alicia Woods appealed the decision of the COA on August 20, 2021. Her appeal was on behalf of the surrounding neighbours located at 15, 23 and 25 Uphill Rd.
7For the reasons that follow, the Tribunal dismisses the Appeal.
PARTICPANTS
8At the outset of the hearing, Shawn Fournier was granted Participant status on consent of the Parties and considered the contents of his statement noted below.
LEGISLATIVE FRAMEWORK
9An appeal pursuant to s.45 of the Planning Act is a hearing de novo. In this case, the Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) have not been met. These tests are that the variance(s):
(a) maintains the general intent and purpose of the Official Plan (the “OP”);
(b) maintains the general intent and purpose of the Zoning By-Law;
(c) is minor in nature; and
(d) is desirable for the appropriate development or use of the land, building or structure.
EVIDENCE
9The Municipal Record of August 23 – Greater Sudbury – 21 Uphill Rd was entered as Exhibit #1. No further planning evidence was entered by either party.
10The Applicant was affirmed as a witness and took the Tribunal through the nature of his application and stated that he is only asking for the variances that were approved by the COA. He followed the recommendations of the City’s Development Engineering Department, Development Approvals Section and Building Services Section. All of these departments along with City Staff were recommending that this application be approved. This application would allow the Applicant to build a new dwelling replacing a condemned dwelling on the Subject Property.
11The Appellant was affirmed as a witness and went through her concerns that the site demolition permit had not been closed off, that there were still issues and concerns with such items as the old septic bed and the design of stormwater flow from the driveway.
12The Appellants other concerns based on her application were as follows:
Inconsistent application approvals of the Planning Act. Adjacent dwellings to this lot had similar applications for lot line variances and they were denied. Why the change in approach?
The design of the proposed sloped driveway raises concerns regarding drainage and the ability for the adjacent properties to adequately retain their driveways and side yards, as well as existing and well-established trees. In this design the driveway for the proposed dwelling will be sloped at a significantly lower elevation than adjacent properties and extend further into the property than the adjacent homes. As such we requested that a drainage plan along with a plan for retention (i.e. retaining walls) be submitted for review and approval.
Adjacent properties are also zoned seasonal and have restrictions where the total coverage of all dwellings on the lot could only cover 10% of the property, with a variance of 16% granted to 15 Uphill Rd (13.95% for the house and 2% for a small outbuilding) and approximately 18% to 23 Uphill Rd and the same for 25 Uphill Rd. The proposed dwelling for the SP is approximately 25% (and this does not include coverage for the outbuilding).
During the public hearing on July 21 the property owner misled the committee by not being honest. Please reference the highlighted section on the bottom of page 4 where the owner firmly stated to the committee that all of the structures on the lot had been removed and that the lot was empty. The attached email with photos sent to Building Services at the Greater City of Sudbury dated July 31st clearly shows that this is not true. We support a new planning act compliance structure at the SP, however the dishonest responses to the committee as per the attached warrants appropriate scrutiny.
ANALYSIS AND DISPOSITION
13There was one participant statement that the Tribunal considered. However, the concerns of Mr. Fournier (the Participant) were to support and encourage the construction of a new dwelling only if the construction is in compliance with current legislation and bylaws.
14The only planning evidence that was submitted by either party was that of the Municipal Record of August 23 – Greater Sudbury – 21 Uphill Rd. (Exhibit #1). This is the only evidence that has any relevance to this appeal.
15In the report presented to the COA on July 21, 2021, The City of Greater Sudbury Development Approvals Sections stated the following:
The variances being sought would facilitate construction of a seasonal dwelling with a covered deck on the subject lands that have water frontage on Long Lake in Lively. The lands also have public road frontage on Uphill Road. The lands are zoned “SLS”, Seasonal Limited Service under By-law 2010-100Z being the Zoning By-law for the City of Greater Sudbury. Staff notes that the lands form a legal existing undersized lot of record having approximately 15 m (49.21 ft) of lot frontage on Uphill Road and Long Lake whereas 45 m (147.64 ft) is required in the "SLS” Zone. Staff acknowledge in this respect that some degree of relief is therefore warranted given the narrowness of the lots that exist along this portion of Uphill Road, as well as the sloping topography that exists on the lands toward Long Lake. Staff is satisfied that the reduced interior side yard setbacks being sought are not excessive and would still allow for sufficient area on both sides of the proposed seasonal dwelling to access the rear yard. Staff also note that the residential dwellings in the general area tend to have similar interior side yard setbacks on similarly legal existing undersized lots of record. Staff has no concerns with the eaves variance. There was also a previous minor variance approval (File # A0021/2019) applicable to the lands that would facilitate an attached garage addition to an existing single-detached dwelling. Staff notes that the previous variance granted aim (3.28 ft) interior side yard setback whereas the current application involving construction of a new single-detached dwelling seeks an interior side yard variance to 1.8 m (5.91 ft) whereas 3 m (9,84 ft) is required. Staff recommends that the variances be approved as they are minor, appropriate development for the area and the intent of both the Official Plan and Zoning By-law are maintained.
16This is the only mention of the Four Tests of a minor variance in the report given to the COA. All of the other departments either had no comments about the application or their comments were taken into consideration in the COA decision.
17The Tribunal understands the nature of the Appellant’s concerns and the Participant’s over this application. However, the Appellant’s concerns are issues that do not have any planning context as to the ZBL or the OP. The Appellant presented multiple issues and concerns that were based mainly on apprehension. The Tribunal found the Appellant did not present any witnesses and only minimal applicable evidence in this case. The concerns of the Appellant may be raised and dealt with at the Building Permit level. The Tribunal agrees with the COA decision on July 21, 2021 and finds that the application is minor in nature, is desirable for the appropriate development or use of the land, maintains the general intent and purpose of the OP and ZBL.
ORDER
18THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to the City of Greater Sudbury By-law No. (2010-100Z as amended) are authorized.
“S. deBoer”
S. deBOER
MEMBER
“Eric S. Crowe”
ERIC S. CROWE
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.