Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 07, 2022
CASE NO(S).: OLT-21-001336
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: Tom Davis
Appellant: Colleen Twomey
Subject: Minor Variance
Property Address/Description: 1193 Salem Road
Variance from By-law: 94-07
Municipality: City of Kawartha Lakes
Municipal File No.: D20-2021-024
OLT Case No.: OLT-21-001336
OLT Lead Case No.: OLT-21-001336
OLT Case Name: Twomey v. Kawartha Lakes (City)
Heard: April 26, 2022 by video hearing
APPEARANCES:
Parties Counsel
Colleen Twomey (“Appellant”) John Ewart
Tom Davis (“Applicant”) Jennifer Savini
City of Kawartha Lakes (“Kawartha Lakes”) Robyn Carlson
DECISION DELIVERED BY K.R. ANDREWS AND P. TOMILIN AND ORDER OF THE TRIBUNAL
BACKGROUND and requested variances
1The Appellant is appealing the Committee of Adjustment (“COA”) decision to authorize the variances requested of this matter.
2The purpose of the variances are to permit the construction of a detached garage at 1193 Salem Road (“Subject Property”). It is noteworthy that the proposal involves the demolition of an existing garage and replacement with a larger structure at approximately the same location.
3The requested and granted variances include the following relief from the subject Zoning By-law (“ZBL”):
As it relates to section 3.1.2.1, to permit an accessory building (detached garage) within the front yard whereas a side or rear yard location is required,
As it relates to section 8.2.1.4, to increase the maximum permitted lot coverage from 5% to 9.6%; and
As it relates to section 3.18.5.1(a), to reduce the minimum building setback from the Environmental Protection (EP) Zone from 15 metres (“m”) to 2.1 m.
4The request received a positive report from planning staff as it was deemed to meet the four parts of the applicable test.
5The Appellant’s appeal is principally concerned with a lack of studies provided to support the proposed development, taking the position that an Environmental Impact Study (“EIS”) and Heritage Impact Assessment (“HIA”) are required to authorize the proposed variances.
6The Tribunal had the benefit of hearing from two registered professional planners, duly qualified, on behalf of the Appellant and the Applicant:
Appellant – Kevin Duguay
Applicant – Diana Keay
7The Tribunal also heard evidence from Dr. Emily Turner, who acts as staff liaison for the Municipal Heritage Committee.
8Kawartha Lakes is the planning authority of this matter and attended the hearing, but did not participate nor take a position in the issues.
The Subject property
9The Subject Property is approximately 0.2 hectares (“ha”) (0.49 acres) in area with 20.2 metres (“m”) (66.2 feet) of frontage along Salem Road and approximately 100 m (328 feet) in depth. The Subject Property is long and narrow and was severed as a rural residential lot from the larger adjacent farm parcel in 1967. That parcel, which includes a designated heritage building (dwelling) is now owned by the Appellant.
10The surrounding land uses are predominately agricultural in nature with several rural residential lots located along Salem Road. Specifically, in the immediate area, agricultural uses are located to the north, south and east and a natural heritage feature locally described as Mariposa Brook is located to the west. The adjacent farm property surrounds the Subject Property on the north, east and west sides and the home located thereon is designated as a heritage property, formerly under By-law No. 2018-177 (at the time of the COA decision) and currently under By-law No. 2022-004.
11The Subject Property is currently developed with a 79.43 square metres (“m2”). one-storey single detached dwelling and a 58.06 m2 detached garage in the front yard. The single detached dwelling is located generally within the middle of the property while the detached garage is located between it and the road. The evidence indicates that both structures were built in 1966.
12The evidence shows and the Tribunal finds that there is insufficient room to locate a driveway beside the dwelling in order to practically locate a garage in the rear of the property, nor is a garage possible beside the dwelling due to the narrow width of the property. The Tribunal further finds that the location of the dwelling’s well and septic system further constrains the location of a garage to the front yard where the existing garage is currently located.
13The Subject Property is surrounded (or was surrounded until recently) by mature trees and vegetation around the east and west sides of the property. Access to the Subject Property is provided via Salem Road.
14It is noteworthy that the evidence shows that the Appellant recently cut down most or all of the vegetation on the west side of the Applicant’s property, thereby eliminating screening of the Applicant’s house and garage from the road in that direction. The Tribunal finds that this has obvious implications with respect to views of the proposed garage from Salem Road, which the Appellant complains are undesirable and form at least part of the basis of her appeal. While no evidence was provided to determine the Appellant’s intent, the Tribunal finds that the Appellant has aggravated her own issues in this respect either intentionally or unintentionally.
Analysis
Necessity of Variances 2 and 3
15It is the position of the Applicant, as supported by the evidence of Ms. Keay, that Variances 2 and 3 are not required because the proposal is in compliance with the ZBL as it relates to lot coverage and environmental setbacks.
16More specifically, Ms. Keay testified that the lot coverage provisions for the subject lands are set out the general provisions for accessory buildings in section 3 of the ZBL, which sets a lot coverage limit of 10% or 150 m2. As the lot coverage for the proposed accessory building is 5.6% and under 150 m2, she testified that the proposed development meets this requirement and no variance is required.
17With respect to the environmental setback provision set out in section 3.18.5.1 of the ZBL, Ms. Keay testified that, in her interpretation, which included a review of the definition of water setback, the setback of the proposed garage is 19 m measured to the summer water mark of the brook, which exceeds the minimum 15 m water setback of the ZBL. Accordingly, she testified that no variance for this provision is required either.
18While she acknowledged there is some ambiguity in the environmental setback provision, Ms. Keay testified that her interpretation is supported by the policies of section 3.11.2 of the Official Plan (“OP”), which sets out criteria for considering a reduction to the water setback in relation to accessory uses.
19The Tribunal notes that Mr. Duguay acknowledged on cross-examination that the ZBL provisions for lot coverage and environmental setbacks could be interpreted as put forward by Ms. Keay.
20The Appellant made no substantive submissions with respect to the correct interpretations of the ZBL provisions associated with Variances 2 or 3. However, through its submissions, the Appellant took the position that the Tribunal could rule on the necessity of the subject variances, but remains of the position that all three requested variances fail to meet the test set out in s. 45(1) of the Planning Act (“Act”).
21The Tribunal finds that the interpretation of a ZBL is a question of law which falls within its powers on an appeal under the Act.
22Citing 2222868 Ontario Inc. v. Grimsby (Town), 2020 ONCA 376 (at para. 32), the Applicant submits that, when interpreting a ZBL, the Tribunal should consider the text of the by-law, the intent of the municipal council, the purpose and scheme of the by-law as a whole, and also that the terms of an OP can aid in the contextual interpretation of a by-law. The Tribunal accepts these submissions and finds the same.
23Citing Greenfield v. Wellesley Hospital, 1976 CarswellOnt 1059 (OMB) (at paras. 3-5) and Mississauga Assn. for the Mentally Retarded v. Clark (No. 2), 1983 CarswellOnt 1867 (OMB) (at para. 29), the Applicant submits that it is fundamental to the jurisdiction of both the COA and the Tribunal that the variance being sought is necessary. The Tribunal agrees, finding that it does not have the jurisdiction to authorize Variances 2 and 3 if it is found to be unnecessary.
24The Applicant noted, and the Tribunal similarly finds, that it is widely understood that the Tribunal may dismiss an appeal and has the authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction and may make orders as may be necessary or incidental to the exercise of its powers pursuant to ss. 8(2), 9(1) of the Ontario Land Tribunal Act. Accordingly, the Tribunal concludes that it has the authority to dismiss the appeal respecting Variances 2 and 3 if the variances are found to be unnecessary.
25The Tribunal confirms that it has found Variances 2 and 3 to be unnecessary, having accepted the interpretation of the ZBL presented by the Applicant and Ms. Keay. As a result, the Tribunal finds that is has no authority to authorize these variances and consequently dismisses the appeal respecting Variances 2 and 3 for it not being required.
26As Variance 1 has not changed from the application before the Committee, and there it no question about the necessity of it to permit the construction of the proposed garage, the Tribunal has jurisdiction to determine the matter within that limited context. The current appeal will therefore proceed with respect to Variance 1 alone (hereinafter referred to as the “requested variance”).
27The Tribunal notes that, with the appeal associated with environmental setbacks being dismissed for the above jurisdictional reasons, there is no purpose in conducting an analysis respecting environmental policy (i.e. as it pertains to a lack of EIS). The case will therefore proceed primarily focussed on heritage concerns expressed by the Appellant.
Heritage Impact Assessment
28The Appellant’s principal argument in opposition to the requested variance focusses on a lack of a HIA to assess the effect the proposal might have on the heritage attributes of the Appellant’s property at 1201 Salem Road, and views in particular.
29Mr. Duguay testified that no regard for the impact of the proposed garage upon the Appellant’s designated heritage building was considered either through the application nor the COA decision.
30However, Mr. Duguay acknowledged that the staff report presented at the COA meeting did provide comments from the Municipal Heritage Committee. It is also apparent to the Tribunal that these comments influenced the COA’s decision with respect to conditions associated with views, including aspects of design, elevation, and veneer/cladding facing the road (see Attachment 1 appended hereto). The Tribunal therefore finds that the COA decision did consider heritage considerations even though it was not expressly mentioned in the reasons of its decision.
31Furthermore, as acknowledged by Mr. Duguay, it is noteworthy that that the applicable heritage by-law (By-law No. 2018-177) associated with the Appellant’s property at the time of the COA decision did not include views as a heritage attribute. However, Mr. Duguay confirmed that By-law No. 2022-004 was initiated by the Appellant and passed sometime afterwards to provide views as a heritage attribute of the Appellant’s property. To be clear, Mr. Duguay and the Appellant do not contend that this new by-law has any application to the present variance request.
32Considering the above, the Tribunal finds that views (both of and from the heritage building) were not expressly protected as it relates to the Appellant’s property. While this fact does not end the analysis from a heritage standpoint, even as it may be related to the impact on views, it does lower the bar in terms of what should be expected of the Applicant in terms of evidence and proof associated with heritage considerations. For example, the Tribunal finds, the Applicant should not be expected to provide a complex and costly HIA to assess impacts that his new garage might have on the views to and from the Appellant’s heritage property.
33As will be discussed in greater detail below, heritage considerations of a more general nature continue to be relevant when examining policy objectives of the province and municipality regarding the protection of heritage attributes. However, with respect to the Appellant’s contention that a formal HIA is necessary to assess the heritage impacts of the development, the Tribunal does not come to the same conclusion.
S. 45(1) of the Act
34When considering a proposed variance, the Tribunal must consider each of the four questions set out in s. 45(1) of the Act:
Is it minor in nature?
Is it desirable for the appropriate development or use of the land?
Does it maintain the general intent and purpose of the official plan? and
Does it maintain the general intent and purpose of the zoning by-law?
All four elements must be satisfied.
1. Is the requested variance minor in nature?
35The Appellant contends that the requested variance is not minor in nature. Mr. Duguay testified that the proposed garage will be larger than the main dwelling (albeit a relatively small dwelling) and the existing accessory structure, having an area of 58 m2, is to be replaced by a structure nearly double the size. He also opined that the proposed garage will have a visual impact upon the adjacent heritage dwelling.
36Mr. Duguay acknowledged that the existing garage can be considered “legal “non-conforming”; however, he opined that the proposed garage nevertheless creates a structure having a location, area and context departing from the regulatory intent of the provisions of the ZBL.
37Regarding this last point, the Applicant points out that s. 3.4.2 of the ZBL permits the “extension, enlargement, reconstruction or structural alteration of a [legal non-conforming/complying] building or structure”, provided that other requirements for the zone are met.
38The Tribunal accepts this submission of the Applicant and finds that, in accordance with s. 3.4 of the ZBL, the Applicant is permitted to reconstruct and enlarge the existing non-complying garage.
39Ms. Keay further opined that the requested variance is minor in nature. She noted that the rural residential use of the subject property will be maintained. She opined that, with no new uses proposed and no reduction in existing setbacks, no new impacts will be created by the proposed development on the Subject Property nor on the surrounding land uses.
40Considering the context of this particular case, especially given that a legal non-conforming/complying garage already exists in the front yard of the subject property, the Tribunal prefers Ms. Keay’s evidence and finds that the requested variance is minor in nature. While the proposed garage is larger than the existing garage, the Tribunal finds that it is not extraordinarily large by today’s standards. The Tribunal further finds that the net-increase of the impact it may create, compared to the existing garage on the surrounding area, is minor if not immeasurable as it relates to the Appellant’s heritage property specifically.
2. Is the requested variance desirable and appropriate for the use of land?
41Mr. Duguay testified that the Application is not desirable or appropriate for the use of land because it fails to acknowledge the Appellant’s designated heritage dwelling to the east. He relies heavily, again, on the fact that no HIA was carried-out in support of the Application.
42Mr. Duguay opined that the placement of the proposed garage (being an enlargement of the existing garage) in the front yard of the subject property does not provide regard for the adjacent designated heritage dwelling. Additionally, Mr. Duguay testified, no appropriate explanation/rationale for the need for an expanded accessory structure was offered.
43In Mr. Duguay’s opinion, without a demonstrated regard for the adjacent heritage designated property, the Application must fail.
44In contrast, Ms. Keay opined that the requested variance is desirable and appropriate for the use of land, as it facilitates the construction of an expanded and more attractive structure that will improve the view, not detract from it, given that it will provide storage for vehicles, recreational vehicles and other items that are currently located outside. It will also replace an aging structure with new construction and, the Tribunal notes, the conditions adopted by the COA require certain design features which are meant to ensure that the new construction is attractive from the road.
45Furthermore, as it relates to views from the Appellant’s heritage dwelling, Ms. Keay notes that a garage located in the backyard, being closer and in full view from the Appellant’s dwelling, would actually be more impactful on the views from the heritage dwelling than if it is built in the front yard. She notes that a structure located in the front yard would benefit from existing screening from the Applicant’s dwelling and vegetation along the eastern perimeter of the Applicant’s property, which does not exist in the backyard.
46Additionally, as previously noted, Ms. Keay opined that the views will also be improved with the construction of an expanded garage given that vehicles, recreational vehicles and other items may be stored within the new structure rather than outside.
47The Tribunal prefers the evidence of Ms. Keay over that of Mr. Duguay and finds that the requested variance is desirable and appropriate for the use of land for the same reasons set out by Ms. Keay above.
3. Does the requested variance maintain the general intent and purpose of the Zoning By-law?
48Mr. Duguay summarily testified that the proposed replacement garage is larger than the residential dwelling, larger than the existing garage, and located where it is not permitted by the By-law. He did, however, acknowledge again that the front yard location of the existing garage is established and may be “legal non-conforming”.
49The Tribunal notes that Mr. Duguay’s opposition to the proposal from a ZBL standpoint was primarily focused on lot coverage and environmental setback concerns, which the Tribunal has already established are not an issue.
50Ms. Keay’s testimony emphasized that section 3.4 of the Township’s ZBL establishes standards with respect to non-complying uses, noting that the application involves the reconstruction of an existing detached garage built in the 1960s, which has been located within the front yard ever since. The Applicant submits that this qualifies the existing garage as non-complying use in accordance with the ZBL.
51The Tribunal accepts the evidence of Ms. Keay and, as stated earlier in this decision, finds that section 3.4 of the ZBL permits the reconstruction and enlargement of the existing non-complying garage. Consequently, the Tribunal finds that the proposal maintains the general intent and purpose of the ZBL.
4. Does the requested variance maintain the general intent and purpose of Kawartha Lakes Official Plan?
52As it relates to the OP, the Appellant’s concerns are once again squarely focussed on heritage concerns. Mr. Duguay testified that the municipality’s staff reports did not reference heritage consideration until a subsequent staff report dated July 15, 2021, provided limited commentary addressing the concerns of the Municipal Heritage Committee in its letter of June 9, 2021. Mr. Duguay emphasized, again, that no HIA was ever provided, which he opined is fatal to the proper adjudication of this matter. As stated previously in this decision, the Tribunal does not accept that a HIA is critical for the approval of the requested variance.
53The Appellant noted that, with respect to section 10.4 of the OP, the Ontario Heritage Act provides for the creation of a Municipal Heritage Committee. As identified by Mr. Duguay, the purpose of this committee is to advise and assist Municipal Council in matters concerning conservation and the designation and protection of buildings of historic or architectural value.
54The Appellant drew the Tribunal’s attention to Section 10.5(a) of the OP, which states:
The city shall encourage the conservation and preservation of its significant built heritage resources, significant cultural heritage landscapes, and significant archaeological resources.
55It was the opinion of Mr. Duguay that the Application fails to address the conservation and preservation of the built heritage resource situated at 1201 Salem Road in accordance with the OP, including views of the designated building.
56The Appellant submits that Section 10.5(g) of the OP provides that the city shall ensure land development adjacent to protected heritage properties do not adversely impact identified heritage attributes of those properties. Mr. Duguay opined that the Application, as considered by the COA, failed to demonstrate any consideration for the conservation and preservation of the designated building and property at 1201 Salem Road, including views of the designated building.
57Mr. Duguay testified that the Municipal Heritage Committee, in their response letter of June 9, 2021 to the COA, offered certain comments that the proposed new garage would impact the designated property at 1201 Salem Road by blocking views (noting that the Designation By-law in place at that time did not specifically address views). However, Mr. Duguay takes the position that the COA failed to consider or otherwise ignored these comments when approving the three minor variances.
58As it relates to heritage considerations contained in the OP, the Tribunal does not accept the submissions and evidence of the Appellant and instead finds that the municipality complied with the related provisions by referring the matter to the Heritage Committee and receiving comments that were subsequently forwarded and considered by the COA. These comments included concerns pertaining to views, and the COA clearly addressed such concerns as reflected in the conditions which formed part of its decision associated with views, including aspects of design, elevation, and veneer/cladding facing the road.
59The Appellant did not make any substantive submission on any other aspect of the OP. However, Ms. Keay did provide a broader assessment of the proposal in consideration of the OP.
60Ms. Keay testified that the Subject Property is designated “Prime Agricultural” in the OP. The OP also recognizes existing rural residential uses in agricultural areas are permitted, and existing rural residential uses include accessory uses, buildings and structures to residential uses.
61Ms. Keay testified that the proposed garage will be constructed generally on the same footprint as what is existing and will not encroach further than the established setback of 19 m and will not be less than the 15 m required under section 3.11.2. Given the long and narrow lot configuration of the Subject Property, the available location for development is constrained.
62Ms. Keay further opined that maintaining the existing location within the front yard will have less impact on the view from the adjacent heritage designated property. In addition, the garage door will face east and not provide direct view from the road.
63Ms. Keay notes that, as part of the conditions of approval granted by the committee of adjustment, the owner is required to reconstruct the garage with architectural elements and materials that maintain some architectural design and control to blend in with the surrounding area and that is aesthetically pleasing from the road.
64In summary, Ms. Keay opined that the variance being sought maintains the general intent and purpose of the official plan. The Tribunal accepts this opinion and evidence and finds the same for the same reasons.
65As it relates to the four questions of the s. 45(1) test, the Tribunal concludes that each of the four parts are answered in the affirmative and so the requested variance satisfies the test.
S. 3(5) of the Act
66Section 3(5) of the Act requires that a decision of the Tribunal be consistent with the Provincial Policy Statement (“PPS”) and conform with or not conflict with the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).
PPS
67The PPS encourages the establishment of healthy, liveable and safe communities and requires that sufficient land be made available to accommodate an appropriate range and mix of land uses.
68Mr. Duguay took the tribunal through a review of various sections of the PPS related to heritage concerns. In doing so, he repeated again that there was no evaluation of heritage attributes through a HIA associated with the Appellant’s property, which he contends is inconsistent with policy 2.6.3 of the PPS:
2.6.3 Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage property except where the proposed development and site alteration has been evaluated and it has been demonstrated that the heritage attributes of the protected heritage property will be conserved.
69In response, the Applicant points out that, at the time of the COA decision, the heritage designation associated with the Appellant’s property only included certain exterior and interior attributes of the existing dwelling, and the proposed variance would obviously not have an impact on the preservation of such features. At the time, views were not recognized as a heritage attribute. This was also the position of the Municipal Heritage Committee. The Tribunal similarly accepts this assertion.
70As it related to views more generally, the Applicant submits that the legal presence of the existing garage on the Applicant’s property means that any impact on views resulting from the construction of the proposed garage will be net-minimal. Ms. Keay opined that the legal non-complying status of the existing garage in the front yard has contributed to the character of the area for over 50 years. The Tribunal accepts this opinion and finds the same.
71The Applicant further points out that the City’s Economic Development Officer for Heritage, Emily Turner, provided in her COA comments that the minor variance application will not have an impact on the heritage attributes of 1201 Salem Road. However, she acknowledged that the Municipal Heritage Committee later contradicted this statement in their comments on the application, recommending conditions with respect to architectural control. The Tribunal finds that these recommendations are reflected in the aforementioned conditions of the COA decision.
72As it relates to the PPS and policy 2.6.3 in particular, the Tribunal finds that the Application is consistent with it. The Tribunal finds that the proposed development was evaluated through the Municipal Heritage Committee and, through its recommendations as adopted by the COA, it has been demonstrated that the heritage attributes of the protected heritage property will be conserved.
73The Tribunal notes that the Heritage Committee’s and COA’s considerations associated with views may have gone further than what was necessary or appropriate at the time, given the scope of the applicable heritage designating By-law in force at the time, but the Tribunal sees no reason to depart from the findings of the COA, as reflected in its imposed conditions, in this regard.
Growth Plan
74The Growth Plan is a long-term plan that works with other provincial plans to provide a framework for growth management in the Greater Golden Horseshoe Region.
75Mr. Duguay opined that the requested variance does not conform with the policy directives of the Growth Plan pertaining to cultural heritage and sections 1.2.1 and 4.2.7:
1.2.1: Conserve and promote cultural heritage resources to support the social, economic, and cultural well-being of all communities, including First Nations and Métis communities.
4.2.7: Cultural heritage resources will be conserved in order to foster a sense of place and benefit communities, particularly in strategic growth areas.
76He opined that the application failed to address the impact of use and how the adjacent designated property would be conserved.
77Ms. Keay opined to the contrary, insofar as the requested variance does not conflict with the policies of the Growth Plan. Her reasons and the Applicant’s submissions were much the same as the reasons set out above in relation to the PPS and OP.
78The Tribunal similarly finds that the Application conforms to the Growth Plan for much of the same reasons set out above. Again, the Tribunal does not find that it is necessary in the present case to have a HIA to prove the merits of the Application. The protected elements of the heritage designation of the Appellant’s property are obviously not affected by the proposed construction, and the Tribunal finds that views are not measurably impacted in any event, especially when considering the fact that the proposed garage is replacing an existing structure that has been in place for over 50 years. As stated above, the impact on views resulting from the proposed garage are, more likely than not, and improvement rather than negative.
Summary and Conclusion
79The Tribunal dismisses the appeal regarding the requested variance for the above stated reasons, and otherwise finds that it constitutes good planning in the public interest.
80The Tribunal confirms that, in coming to its decision, it has had due regard for the decision of Township Council in accordance with s. 2.1(1) of the Act.
ORDER
81THE TRIBUNAL ORDERS that the appeal is dismissed and:
the requested variance to the Township of Mariposa Zoning By-law No. 94-07, to permit an accessory building (detached garage) within the front yard, is authorized subject to the same conditions set out in the Committee of Adjustment decision of this matter dated July 15, 2021.
the requested variances to the Township of Mariposa Zoning By-law No. 94-07, to:
a. increase the maximum permitted lot coverage from 5% to 9.6%; and
b. to reduce the minimum building setback from the Environmental Protection Zone from 15 metres to 2.1 metres;
are not authorized as a result of these variances not being required.
“K.R. Andrews”
K.R. ANDREWS
MEMBER
“P. Tomilin”
P. TOMILIN
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.