Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 10, 2022
CASE NO(S).: OLT-22-002215
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Sun Hua
Subject: Minor Variance
Description: Requesting the variances to recognize an existing deck located in the rear yard at the second storey
Reference Number: A/103/21
Property Address: 15 Fierheller Court
Municipality/UT: Markham/York
OLT Case No: OLT-22-002215
OLT Case Name: Hua v. Markham (City)
Heard: May 24, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Sun Hua
Self-represented
City of Markham
V. Chai*
DECISION DELIVERED BY STEVEN COOKE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Sun Hua (“Applicant”) applied to the Committee of Adjustment (“CoA”) of the City of Markham (“City”) for a Minor Variance to Zoning By-law No. 177-96, as amended (“ZBL”) to recognize an existing deck located in the rear yard at 15 Fierheller Court (“Subject Property”).
2The Applicant initially requested the three variances to recognize an existing deck located in the rear yard at the second storey with a height of at least 3.07 metres (“m”) from above the ground surface in the rear yard. The variances consisted of:
a. a rear deck having a height greater than 1.0 m (3.28 feet (“ft”)) to be located 2.52 m (8.27 ft) from the rear lot line, whereas the by-law permits a deck having a height greater than 1.0 m (3.28 ft) to be located no closer than 3.0 m (9.84 ft) to the rear lot line;
b. a rear deck having a height greater than 1.0 m (3.28 ft) to extend 4.0 m (13.12 ft) from the wall closest to the rear lot line, whereas the by-law permits a deck having a height greater than 1.0 m (3.28 ft) to extend a maximum of 3.0 m (9.84 ft) from the wall closes to the rear lot line; and
c. the floor of a deck to be located above the first storey, whereas the by-law requires that the floor of the deck is not higher than the floor level of the first storey of the main building.
3However, the Tribunal was informed that a settlement has been reached between the Applicant and the City, subject to conditions, and as a result, the Applicant now only requires the variance related to the maximum permitted floor deck height.
4The Tribunal received and marked the following documents as Exhibit 1 the Joint Document Book provided by the City.
MINOR VARIANCE
5The Tribunal must determine whether 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?
6In 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.
PLANNING EVIDENCE
7Upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty Form, the Tribunal affirmed Aleks Todorovski, a planner with the City, and qualified him to provide expert opinion evidence in land use planning.
8Mr. Todorovski described the Subject Property as being located on the south side of Fierheller Court, north of Beckett Avenue, east of Kennedy Road, and west of William Berczy Boulevard. The property is currently developed with a single detached dwelling, which has a first-storey walkout at the rear.
9The Subject Property is within the Upper Unionville community area, which is primarily a low-rise residential community containing a mix of detached, semi-detached and townhouse dwellings.
10The Tribunal was informed by Mr. Todorovski that City staff have worked with the Appellant to resolve a majority of the issues by revising the proposal. The revised proposal would only require one variance that Mr. Todorovski described as minor in nature, as it would be consistent with similar decks on other properties along Fierheller Court.
11Like many of the properties along Fierheller Court, the Subject Property has a slopped rear lot. It was the opinion of Mr. Todorovski that given the site-specific nature of the Subject Property, allowing for a rear yard deck is desirable. He further explained that having a deck that is off common shared spaces, like a kitchen, provides for additional outdoor amenity space.
12It is the position of Mr. Todorovski that the proposed settlement variance meets the general intent of the City OP and ZBL No. 177-96 and has regard to matters of Provincial interest, under s. 2 of the Act.
DISPOSITION
13The Tribunal accepts the uncontested planning evidence of Mr. Todorovski and recognizes the contributions of the City staff to bring the matter before the Tribunal to an expedient resolution. The Tribunal finds that the variance has regard for Provincial interests, is consistent with the PPS, has regard for the City OP and ZBL, constitutes appropriate development and use of the land that is desirable in nature, and is minor.
14It is the finding of the Tribunal, that the Applicant provided sufficient evidence to satisfy the above requirements, and as such, the Tribunal is prepared to grant the required variance for the revised proposal
ORDER
15The Tribunal Orders that the appeal is allowed and the variance to Zoning By-law 177-96 is authorized subject to the following conditions:
That the variance applies only to the proposed development, in substantial conformity with the revised Site Plan and Elevation Drawings, attached as Appendix “A” to the Minutes of Settlement between the Parties, showing a 1 m (3.28 ft) reduction from its existing projection and resulting in a deck size of 3.53 m (11.58 ft) by 4.75 m (15.58 ft), and that the Secretary-Treasurer receive written confirmation from the Director of Planning and Urban Design, or their designate, that this condition has been fulfilled to their satisfaction; and
That the variance applies only to the proposed development for as long as it remains.
“Steven Cooke”
STEVEN COOKE
VICE-CHAIR
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.