Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 28, 2022
CASE NO(S).: OLT-21-001456
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Christine Boyce
Subject: Minor Variance
Property Address/Description: 734A Krosno Boulevard
Variance from By-law: 2520
Municipality: City of Pickering
Municipal File No.: P/CA 73/21
OLT Case No.: OLT-21-001456
OLT Lead Case No.: OLT-21-001456
OLT Case Name: Boyce v. Pickering (City)
Heard: March 7, 2022 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Christine Boyce | Self-represented |
| Nadene Sinclair | Self-represented |
| Martina Tojčić | Self-represented |
| Richard Funnell | Self-represented |
DECISION DELIVERED BY S. BOBKA AND CARMINE TUCCI AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Christine Boyce (“Appellant”), owner of the lands municipally known as 734A Krosno Boulevard (“Subject Property”) in the City of Pickering (“City”), has appealed under s. 45(12) of the Planning Act (“Act”), the refusal of minor variances by the City’s Committee of Adjustment (“CoA”).
2The proposed development involves the construction of a second storey addition to an existing townhouse (multiple attached) dwelling. The Appellant is seeking relief from the City’s Zoning By-Law (“ZBL”) 2520, as amended, to permit:
an interior side yard setback of 0 metre from both side lot lines, whereas the ZBL requires a minimum side yard setback of 6.0 metres;
a minimum floor area of 80 square metres, whereas the ZBL requires a minimum floor area of 95 square metres per dwelling unit; and
a maximum lot coverage of 25.2 percent, whereas the ZBL permits a maximum lot coverage of 25 percent for all buildings other than private garages.
3Planning staff recommended the refusal of the requested variances and the CoA refused the application. The decision of the COA is now the subject of the appeal before the Tribunal, brought forward under s. 45(12) of the Act.
4Prior to the Hearing, the Tribunal was notified that the City would not be appearing.
5The Tribunal received requests for Party status from three neighbours. After a discussion regarding the role and responsibilities of a Party, the Tribunal granted Party status to:
Nadene Sinclair;
Martina Tojčić; and
Richard Funnell.
SITE CONTEXT
6The Subject Property is an interior unit in a townhouse block that consists of 12 units. Excluding the end units, the rear wall of the block maintains a consistent rear yard setback and is flush. Both end units are stepped forward in a symmetrical nature.
7Under the City’s Official Plan (“COP”), the Subject Property is designated “Mixed Use Areas – Local Nodes” within the Bay Ridges Neighbourhood, which accommodates a mix of uses including residential townhouses. It is zoned RM2 under the ZBL.
LEGISLATIVE FRAMEWORK
8An appeal under s. 45 of the Act is a hearing de novo. It is up to the Applicant to show that the application meets the four tests as set out in s. 45(1), specifically that the requested variances:
maintain the general intent and purpose of the Official Plan (“OP”);
maintain the general intent and purpose of the ZBL;
are desirable for the appropriate development or use of the land, building or structure; and
are minor in nature.
9The Tribunal must also have regard to matters of Provincial interest as set out in s. 2 of the Act, be consistent with the Provincial Policy Statement, 2020 (“PPS”) and it must have regard to the decision of the CoA and the information considered by it, as required under s. 2.1(1) of the Act.
HEARING
10The Appellant called Peter Barton, an Architectural Technologist as their only witness. The Tribunal received Mr. Barton’s Acknowledgement of Expert’s Duty form and were given a verbal overview of his Curriculum Vitae. Mr. Barton was sworn and qualified by the Tribunal to provide expert opinion evidence in the safe design and management of construction projects. The Tribunal clarified that Mr. Barton is not an expert in land use planning.
11The Parties stated that they would not be calling any witnesses but would be relying on the planning opinions presented in the City staff report to the CoA dated September 8, 2021 found in the Municipal Record (marked as Exhibit 1). The Appellant had no objections.
Do the Proposed Variances Maintain the General Purpose and Intent of the Official Plan?
12Mr. Barton did not provide any evidence regarding the COP.
13In the staff report to the CoA, the City’s Planning Department stated that the proposal conforms to the intent of the COP, as the Subject Property is designated “Mixed Use Areas – Local Nodes” within the Bay Ridges Neighbourhood, and within this designation a mix of uses, including residential townhouses are accommodated.
14None of the Parties made any submissions regarding the COP.
15Based on the land use planning evidence presented in the staff report to the CoA, the Tribunal finds that the proposed variances maintain the general intent of the COP.
Do the Proposed Variances Maintain the General Purpose and Intent of the Zoning By-Law?
16Mr. Barton explained that regarding the ZBL, the biggest issue is the side yard setback. He opined that the 6.0 metre side yard setback is intended for end units of townhouses, and that there were no setbacks outlined in the ZBL for ‘Party walls’, which are walls common to two adjoining buildings or rooms.
17Mr. Barton stated that during construction, the side walls of the addition are completely finished on the ground and then raised, meaning there is no need to impede on neighbouring properties to construct the project. Mr. Barton explained that all materials and equipment would be brought either through the house, or through the rear of the property, as there is a gate at the rear which leads to a park.
18The witness shared that regarding concerns raised about negative impacts to the foundation, there would be no work done against the foundation of the house, as the column pads would be about 16 feet (approximately 4.8 metres) away.
19Mr. Barton stated that with regard to drainage concerns, the proposal’s downspouts would follow the addition, go down the columns and extend out into the rear yard. He opined that this would alleviate any drainage concerns.
20In his opinion, Mr. Barton found that the proposal complies with the ZBL.
21The staff report to the CoA states that the RM2 zone “does not prescribe an alternative minimum side yard setback requirement for interior units”.
22The report also indicates that a 0-metre side yard setback:
does not provide sufficient space for the exterior maintenance of the second-storey addition and will not allow for runoff and drainage to be contained within the limits of the subject property.
23In the report to the CoA, it states that the proposed addition would result in a minimal increase in lot coverage, being just 0.2 percent above the permitted lot coverage of 25%.
24The report adds that the addition will produce a negative visual impact when viewed from the rear yard and that the 0-metre side yard setback will create “significant adverse impacts on abutting adjacent properties”.
25The report indicates that the proposed variances do not conform to the intent of the ZBL.
26Ms. Sinclair questioned Mr. Barton regarding the roof and rainwater and what the impact would be with the further coverage of the land by the proposed addition. Mr. Barton opined that the property was quite deep and that there would be plenty of land to absorb any water regardless of the addition.
27Ms. Sinclair asked the witness whether a structure such as the proposed addition would negatively impact the neighbours in terms of the amount of sunlight their properties would receive? Mr. Barton responded that any addition would block sunlight, even if the structure was narrower than the proposed addition in order to achieve more than a 0-metre side yard setback. He opined that the effect on sunlight would be negligible.
28Ms. Tojčić asked the witness about his experience with other similar projects and whether they were supported unanimously by neighbours and the CoA? Mr. Barton replied that he had completed two similar projects, both in the City of Toronto, and that these did not require variances from the CoA due to different ZBLs in that area.
29Mr. Barton added that in those identical situations in Toronto, the rainwater from the addition went straight off the back of the building.
30Mr. Funnell stated that as an adjacent property owner, he did not want anyone on his property for construction or maintenance. He then asked the witness how the siding on the side walls of the proposed addition with their 0-metre side yard setback would be maintained? Mr. Barton explained that the walls would be completely finished prior to being raised, so it would not be necessary to encroach on the adjacent property during construction. He opined that in the case that the siding was damaged somehow, that arrangements would need to be made with the adjacent property owner, but this had not been an issue in the other similar projects he has completed.
31None of the Parties made any further submissions regarding the ZBL.
32Based on a review of all the evidence, the Tribunal finds that the proposed variances would create a negative impact on neighbouring properties regarding sunlight, drainage and access and is not compatible with the existing built form of the townhouse block, thereby creating a negative visual impact. It finds that the proposed variances do not maintain the general purpose and intent of the ZBL.
Are the Proposed Variances Desirable for the Appropriate Use of the Subject Property?
33Mr. Barton stated that the proposed addition would help accommodate Ms. Boyce’s growing family and contribute to her enjoyment of the home.
34In the staff report to the CoA, the planner opines that the proposal would result in a rear yard which is inconsistent with the remainder of the townhouse block.
35After a question by the Tribunal, Mr. Barton stated that it was only the planner’s opinion that the design would be inconsistent with the remainder of the block.
36Ms. Tojčić submitted that there would be many negative effects if the 0-metre side yard setback was approved. She cited concerns with reduced sunlight into the adjacent homes and gardens, as well as reduced enjoyment of the neighbouring properties.
37Mr. Funnell submitted that allowing the addition could decrease the value of his property.
38Upon review of all materials, evidence and submissions before it, the Tribunal finds that the proposed variances are not desirable for the appropriate use of the Subject Property.
Are the Proposed Variances Minor in Nature?
39Mr. Barton stated that the proposed addition would not be visible from the front of the house.
40The staff report to the CoA indicates that the proposal will require access to adjacent lands for maintenance, would create drainage issues and produce a negative visual impact from the neighbouring rear yards.
41When questioned by the Tribunal, Mr. Barton replied again that it was only the planner’s opinion that there would be a negative visual impact. He opined that access over neighbouring lands for maintenance would be unlikely.
42Ms. Sinclair and Ms. Tojčić and Mr. Funnell submitted concerns regarding drainage, reduction of views and sunlight, and the need to access the adjacent properties to perform any required maintenance.
43Based on the evidence before it, the Tribunal finds that the requested variances regarding minimum floor area and maximum lot coverage are minor in nature; however, the impact of an interior side yard setback of 0 metre from both side lot lines will have undue adverse impacts on adjacent neighbours and is therefore not minor in nature.
Conclusions
44In this Hearing before the Tribunal, it is up to the Applicant to demonstrate that the application is consistent with the PPS, has regard for matters of Provincial interest and meets the four tests of a minor variance. There was no evidence presented nor submissions made regarding consistency with the PPS or the Regional Official Plan.
45It is the finding of the Tribunal that the Applicant did not provide sufficient evidence to satisfy the requirements of the four tests in s 45(1) of the Act and as such, the Tribunal cannot grant the minor variances sought.
ORDER
46THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to the City’s Zoning By-law No. 2520, as amended, are not authorized.
“S. Bobka”
S. bobka
MEMBER
“Carmine Tucci”
carmine Tucci
MEMBER
Ontario Land Tribunal
Website: www.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.