Mandarelli v. Lambton Shores (Municipality), 2022 CanLII 45359

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 25, 2022

CASE NO(S).: OLT-21-001409

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Tony and Laura Mandarelli

Subject: Minor Variance

Property Address/Description: 9954 Ontario Street, Port Franks

Variance from By-law: 1 of 2003

Municipality: Municipality of Lambton Shores

Municipal File No.: A16-2021

OLT Lead Case No.: OLT-21-001409

OLT Case No.: OLT-21-001409

OLT Case Name: Mandarelli v. Lambton Shores (Municipality)

Heard: March 28, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel*/Representative
Tony and Laura Mandarelli	Self-represented
Municipality of Lambton Shores	A. Baroudi*

DECISION DELIVERED BY S. BOBKA AND S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Tony and Laura Mandarelli (together referred to as the “Applicants”) applied to the Committee of Adjustment (“CoA”) of the Municipality of Lambton Shores (“Municipality”) for a Minor Variance (“MV”) to Zoning By-law No. 1-2003 (“ZBL”) to permit an increased lot coverage for accessory buildings at 9954 Ontario Street (“property”) in the community of Port Franks.

2The CoA denied the application and the Applicants appealed the decision to the Tribunal.

3As reviewed below, the Tribunal will allow the appeal only to the limited degree of recognizing the size of the new accessory building (“large garage”), being just slightly over the ZBL permitted maximum lot coverage and for which the Municipality issued a building permit. This Decision thereby requires the original accessory building (“small garage”) to be removed.

VARIANCES REQUESTED AND BACKGROUND

4The property is within the ‘Residential – 5 (R5) Zone’ (“R5”) which encompasses much of the residential and cottage community of Port Franks. The property contains a dwelling and a detached small garage, as well as a recently constructed, large, detached garage. The building permit for the large garage was conditional on the small garage being removed upon completion of the new building. The Applicant now wishes to retain both garages.

5The variance sought is to ZBL s. 3.3.4 to permit a lot coverage for accessory buildings of 131.1 square metres (“sq m”), whereas s. 3.3.4 limits the maximum lot coverage to 93 sq m.

6Of note, however, is that the large garage, at 94.3 sq m, itself exceeds the maximum lot coverage provision for accessory buildings. The Parties acknowledged that, should the Tribunal deny the requested variance, it would be appropriate to allow the appeal only for the purpose of granting a variance to recognize the slight 1.3 sq m over-size of the large garage.

7To the extent that this Decision constitutes an amended application for the large garage only, pursuant to s. 45(18.1) of the Planning Act (“Act”), no further notice is required given the Tribunal’s finding that the amendment to the application is minor.

HEARING

8There were no requests for Party or Participant status at the Hearing.

9The Tribunal received and marked the following documents as Exhibits to the Hearing:

Exhibit 1: Applicants’ hearing materials Exhibit 2: Applicants’ photos Exhibit 3: Applicants’ letters of support Exhibit 4: Municipality’s hearing materials

10The Tribunal also had the Municipal Record available to it, as forwarded by the Municipality, containing all the information and documentation before the CoA, when the proposed variance application was received, considered and denied.

11In determining this Appeal, it must be noted that, this is a hearing de novo pursuant to s. 45 of the Act and the onus is on the Applicant to establish that the four tests under s. 45(1) of the Act have been met.

12The Tribunal must evaluate the proposed variance in the context of the following four tests under s. 45(1) of the Act:

i) Does it maintain the general intent and purpose of the ZBL?

ii) Does it maintain the general intent and purpose of the Official Plan (“OP”)?

iii) Is it desirable for the appropriate development or use of the land?

iv) Is it minor in nature?

13In addition, s. 3(5) of the Act requires that decisions of the Tribunal be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

14In recognition of the fact that the Applicants were self-represented, the Tribunal opted to affirm both Mr. and Mrs. Mandarelli as lay witnesses. Without objection from the Municipality, this approach enabled the Tribunal to hear and separate the Applicants’ factual evidence from their submissions.

15The Applicants explained they were unsuccessful in their attempts to sell the small garage, for removal and re-use in another location, in order to comply with the building permit’s requirement for removal. They found that the building’s solid construction made its intact removal unfeasible and they prefer not to demolish a useful building, with portions of it necessarily going to landfill.

16With reference to their visual evidence and the supportive letters from neighbours, the Applicants submitted that keeping both buildings was suitable for reasons including: a substantial setback from the street; screening of the buildings by trees; reasonable and permitted use of the buildings for automotive and household storage; similarly sized buildings exist or are proposed in the area; and attention to the design and position of the buildings is in keeping with the property and the neighbourhood.

17The Applicants did not specifically address, and did not call a witness to address, the Act’s requirements in support of the variance. They emphasized the common sense in allowing both buildings to remain as accessory structures with no impacts to others, and that such result warrants approval of the requested variance.

18Upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty Form, and hearing no objections, the Tribunal affirmed Will Nywening and qualified him to provide opinion evidence in land use planning.

19Mr. Nywening explained that the Municipality deals with accessory buildings in section 3.3.4 of the ZBL which states that “The total Lot Coverage of all Accessory Buildings and Structures on a Lot in a Residential Zone shall not exceed 93 square metres or 10% of the Lot Area, whichever is less.” He opined that this standard is very generous, is much greater than the average size of accessory buildings and should provide for most residential needs.

20He further explained that when seeking a variance from this 93 sq m standard, it warrants closer scrutiny of the proposal, and subsequently other criteria such as scale and design should apply. Mr. Nywening stated that this application must be evaluated as if it hadn’t already been built, and if that were the case, the Municipality would likely have required mitigating strategies to address the scale of the large garage.

21Mr. Nywening opined that the intent of the ZBL was not being met and reiterated that steps to mitigate the scale of the large garage were not possible as the structure was already built.

22Mr. Nywening highlighted to the Tribunal his concerns that the large garage did not meet the definition of “Accessory” as defined in s. 2.2 of the ZBL. He opined that, together with the small garage, the accessory buildings are not “subordinate, incidental and secondary to the main Use, Building or Structure” given that the larger garage is taller than the house and likely has a greater volume.

23Mr. Nywening also shared his concerns that the application may be in violation of s. 3.3.1 b) of the ZBL which states that accessory buildings should not be used for “human habitation”. He stated that the Applicants had mentioned using the large garage to entertain guests.

24It was Mr. Nywening’s opinion that the proposed variance would not be in keeping with the general intent and purpose of the ZBL.

25The witness explained to the Tribunal that while neither the County OP (“COP”) nor the Municipality’s OP (“OP”) contain policies specific to this situation, both OPs address the importance of preserving residential areas.

26Regarding the COP, Mr. Nywening drew the Tribunal’s attention to Chapter 2 which speaks to Quality of Life. He highlighted s. 2.1.4 which promotes “a built form that is well-designed, encourages a sense of place and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant”. The witness opined that residential areas are important to quality of life and that built form is a contributing factor.

27With regards to the OP, Mr. Nywening spoke to s. 5.1 which allows accessory buildings and structures but states that they must be compatible. It was the witness’ opinion that the large garage was not compatible. He also raised s. 5.4 and opined that the large garage is out of scale with the structures on the lot and in the immediate neighbourhood.

28Mr. Nywening also highlighted the definition of development found in the OP, which includes the construction of buildings and structures requiring approval under the Act. He shared that s. 15.2 states that new development must follow the Urban Design Principles and Guidelines including Form and Design. It was his opinion that the lot coverage of the Proposed Variance was not in character with the area, that the massing of the large garage was out of scale with the neighbourhood and, therefore, did not meet the general intent and purpose of the OP.

29Mr. Nywening opined that the height and size of the large garage was not desirable as there was no precedent for a building of this size and scale in the neighbourhood, save for one other 1,280 square foot (118.92 sq m) structure which helped with the clean up of that property, was a lower structure, was situated lower than the house and was clearly secondary to the main dwelling. He further opined that in the current situation, the large garage dominates the house and is out of scale for the property and zone.

30The witness spoke to the existing vegetative screening and opined that given the close proximity to other dwellings, it was not sufficient to justify the proposed lot coverage.

31It was Mr. Nywening’s opinion that:

the proposed detached accessory building lot coverage is not appropriate for the development or use of the lands. The new building is not residential in character and not in scale with the dwelling or neighbourhood. In [his] opinion, circumstances that would justify the need for a larger lot coverage do not exist and there is not meaningful opportunity to mitigate concerns.

32Speaking to whether the proposed variance was minor in nature, Mr. Nywening opined that there was a significant numerical difference between the proposed lot coverage of 131.1 sq m, which is more than a 40% increase over the permitted 93 sq m maximum accessory building lot coverage. Moreover, he was of the opinion that the impact of this proposed variance was quite significant as it would be larger than any variance in a residential neighbourhood previously approved by the CoA and might impact how the municipality issues conditional building permits in future. It was Mr. Nywening’s opinion that the proposed variance is not minor in nature.

33With respect to the requirement for the Tribunal to have regard to matters of Provincial interest, under s. 2 of the Act, Mr. Nywening opined that the proposed variance did not have regard for s. 2 (h) orderly development, nor (r) well designed built form.

34With respect to the PPS, Mr. Nywening opined that the large garage did not contribute to the area’s long-term economic prosperity as it did not promote a well-designed built form.

ANALYSIS AND FINDINGS

35In this Hearing before the Tribunal, the onus lies with the Applicants to demonstrate that the requested variance has regard for matters of Provincial interest, is consistent with the PPS, and meets the four tests of a Minor Variance.

36It is the finding of the Tribunal, that the Applicants did not provide sufficient evidence to satisfy the above requirements, and as such, the Tribunal cannot grant the minor variance sought for the purpose of retaining both garages. The Applicants did acknowledge that should the Tribunal not grant the requested variance, they would remove the small garage as required.

37It is noted, however, as agreed to by the Parties at the outset of the Hearing, that it is appropriate and within the Tribunal’s jurisdiction to grant a variance to recognize the slight 1.3 sq m over-size of the large garage.

38While Mr. Nywening’s evidence focussed on the size and appearance of the large garage for the purpose of addressing the appropriateness of the requested variance, he did acknowledge that a variance could be granted for the new garage only, given that a building permit was issued, the building now exists, and the lot coverage excess is very minor. He noted that such variance would necessitate the removal of the existing garage, consistent with the original requirement of the Municipality.

39The Tribunal accepts the uncontested planning evidence of Mr. Nywening and finds that the variance, as applied for, fails to satisfy the tests for a minor variance. The Municipality’s consent, and Mr. Nywening’s acceptance to recognizing the lot coverage of the new garage only, leads the Tribunal to find that permitting 1.3 sq m of additional lot coverage for the accessory building: has regard for Provincial interests; is consistent with the PPS; has regard for the COP, OP and ZBL; constitutes appropriate development and use of the land; and is minor.

ORDER

40The Tribunal Orders that the appeal is allowed in part, and

i. the variance in the original application is not authorized; and

ii. the variance in the deemed amended application is authorized to vary s. 3.3.4 of Zoning By-law No. 1-2003 to permit a total lot coverage of all accessory buildings and structures not exceeding 95 square metres, subject to the following condition:

• that the detached small garage is removed to the satisfaction of the Municipality of Lambton Shores.

“S. Bobka”

S. BOBKA

MEMBER

“S. Tousaw”

S. TouSAW

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.