Wubs v. Welland (City), 2022 CanLII 78145

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 23, 2022

CASE NO(S).: OLT-22-003087

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

Appellant: Anne-Marie Wubs

Applicant: Mario Geremia

Subject: Minor Variance

Description: To allow a two-storey detached accessory structure (garage)

Reference Number: A15-2022

Property Address: 50 Highland Gardens

Municipality/UT: Welland/Niagara

OLT Case No.: OLT-22-003087

OLT Lead Case No.: OLT-22-003087

OLT Case Name: Wubs v. Welland (City)

Heard: July 29, 2022, by video hearing

APPEARANCES:

Parties

Counsel

Mario Geremia

Thomas Hanrahan

Anne-Marie Wubs

Self-represented

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

BACKGROUND

1This was a hearing of an appeal by Anne-Marie Wubs (“Appellant”) from the decision of the City of Welland (“City”) Committee of Adjustment (“COA”) to approve an application for Minor Variances (“MV”). Mario Geremia (“Applicant”) is seeking relief from Zoning By-law No. 2017-117 (“ZBL”), as amended, concerning 50 Highland Gardens (“subject property”/”subject lands”), to allow the construction of a two-storey detached accessory structure (garage) with a second-floor loft and deck with covered porch below, within the rear yard.

2The subject property consists of a single detached dwelling and a detached garage and is located on the north side of Highland Gardens, west of Fell Street. The subject property is surrounded by single-detached dwellings to the north, east and south and to the west is Chippawa Park.

3The subject lands are within a settlement area under the Provincial Policy Statement and a Built Up Area under the Growth Plan for the Greater Golden Horseshoe. The subject property is within the Urban Area of the City under the Region of Niagara’s Official Plan (“OP”). The subject lands are designated Low Density Residential and are zoned Residential Low Density 1 (RL 1), which permits a range of housing types, including detached garages.

4There were no Party or Participant requests filed with the Tribunal for the hearing.

THE DEVELOPMENT PROPOSAL

5The Applicant is proposing to demolish the existing detached garage and to replace it with a two-storey detached garage, with a second-floor loft with a deck and a covered porch below, within the rear yard.

6The Applicant is requesting the following variances from the ZBL to permit:

(a) A maximum height for an accessory building of 8.45 metres (“m”), whereas the maximum height permitted is 6 m (s. 5.3.3 - Height of Accessory Buildings);

(b) An increase in the maximum lot coverage to 10.75%, whereas a maximum lot coverage of 10% is permitted (s. 5.3.4 - Lot coverage for Accessory Buildings); and

LEGISLATIVE FRAMEWORK

7An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Appellant bears the onus to demonstrate to the Tribunal that the four tests set out under s. 45(1) have been met. The four tests are:

maintains the general intent and purpose of the official plan;
maintains the general intent and purpose of the zoning by-law;
is desirable for the appropriate development or use of the land, building or structure; and
is minor.

8In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Planning Act, and to the decision of the approval authority under s. 2.1 of the Act.

ISSUES, ANALYSIS AND FINDINGS

9The matters raised by the Appellant before the Tribunal were: does the proposed development meets the four legislative tests under s. 45 of the Act and what impact would the development have on the neighbouring properties.

10Another point brought up by the Appellant was that the subject lands are comprised of two lots and that those lots can be separately conveyed at any time in the future; therefore, the Appellant argued that the lot coverage area has to be calculated separately for each of the lots.

11Rachelle Larocque is the City Planner, who appeared under summons before the Tribunal and is the only witness to give expert testimony. After review of Ms. Larocque’s professional qualifications and confirmation of her Acknowledgement of Expert Duties, the Tribunal qualified Ms. Larocque to provide expert opinion evidence in the area of land use planning.

12The City did not participate in the hearing.

Architectural Design

13The proposed two-storey accessory structure was designed to compliment the existing English Tudor Cotswold house style, which was built in the late 1920s - early 1930s and is a unique home. The proposed structure will have a roof pitch and similar height lines as the existing dwelling.

Height

14The height of the proposed garage is proposed to be increased above the allowable height, to be keeping with the unique roof pitches and features of the traditional Cotswold style.

15The Tribunal finds that the general intent and purpose of the design and height of the proposed structure is to reinforce the neighbourhood’s character.

16The Tribunal finds that the MV for height to permit a two-storey accessory dwelling maintains the general intent and purpose of the OP, maintains the general intent and purpose of the ZBL, is desirable for the appropriate use and development of the land, is minor in nature and will not result in the creation of unacceptable adverse impacts.

Lot Coverage

17Ms. Larocque stated that the subject lands are comprised of two lots; however, the subject property is registered under one property identification number within the Province of Ontario (Exhibit 1, TAB 12). Thus, the lot coverage is calculated for a single parcel of land. In Ms. Larocque’s opinion, the proposed increase from 10% to 10.75% is considered minor and would not have any impact on the amount of amenity space on the property. The Tribunal agrees.

18The concern about a future severance of the property is speculative in nature and is not a matter that can be considered by the Tribunal in the determination of the minor variances.

Rear Yard Setback

19Ms. Larocque opined that because the proposed development would have a second storey deck and is not considered a main residence, but rather an accessory structure, there are no applicable regulations for the decks attached to the accessory structures.

Impact on the Neighbouring Properties

20The Appellant provided the Tribunal with a Shadow Study of the proposed development. However, the Appellant was not qualified as an expert, the Tribunal did not receive a Curriculum Vitae and an Acknowledgement of Expert Duties from the author of the shadow study analysis, and the author of the study was not present at the hearing. Thus, the Tribunal did not put any weight on the Shadow Study.

21The proposed accessory structure will have greater rear and side yard setbacks than the existing garage. In Ms. Larocque’s opinion, this will help to offset the increased height and will lessen its impact on the neighbouring properties.

22When it comes to privacy, the Tribunal notes that in Hany v Toronto (City), 2018 CanLII 78775 (ON LPAT), at para. 58, Vice-Chair Schiller found:

The requirement set out in the OP is for adequate privacy. The OP standard of “adequate privacy” does not mean that there is a requirement for “no overlook”.

23Given that the subject property is located within an urban area, there will be some overlook. The Tribunal finds that the degree of overlook from the proposed development will be minor and will result in adequate privacy to the surrounding properties.

CONCLUSION

24Regard has been given to the concerns brought up by Ms. Wubs. However, based on a thorough review of the evidence before the Tribunal, including the uncontroverted planning evidence provided by Ms. Larocque and the support of the development by the Planning Division and the COA, the Tribunal finds that the variances are minor, satisfy the four tests of s. 45(1) of the Act, have regard to the matters of the provincial interests set out in s. 2, are representative of good planning in the public interest and maintain the general intent and purpose of the OP and the ZBL.

ORDER

25THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to By-law No. 2017-117, as amended, are authorized subject to the following condition:

That a comprehensive overall lot grading plan be submitted for approval to the Senior Project Manager - Development, demonstrating that the encroachment into the rear yard setback does not negatively impact drainage or the adjacent properties.

“P. Tomilin”

P. tomilin

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.