2640714 Ontario Ltd. v. Clarington (Municipality), 2022 CanLII 83300

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 07, 2022

CASE NO(S).: OLT-22-003721, OLT-22-003722

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

Applicant/Appellant: 2640714 Ontario Ltd.

Subject: Minor Variance

Description: To facilitate the creation of a single detached dwelling lot

Reference Number: A2022-0005

Property Address: 1442 Nash Road

Municipality/UT: Clarington/Durham

OLT Case No: OLT-22-003721

OLT Lead Case No: OLT-22-003721

OLT Case Name: 2640714 Ontario Ltd. v. Clarington (Municipality)

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

Subject: Minor Variance

Description: To facilitate the creation of a single detached dwelling lot

Reference Number: A2022-0006

Property Address: 1442 Nash Road

Municipality/UT: Clarington/Durham

OLT Case No: OLT-22-003722

OLT Lead Case No: OLT-22-003721

Heard: August 22, 2022 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

2640714 Ontario Ltd.

Self-Represented

Dan Lawson

Cameron Murkar*

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a hearing of the appeal by 2640714 Ontario Ltd. (“Applicant/Appellant”) from the decision of the Municipality of Clarington (“Municipality”/“Clarington”) Committee of Adjustment (“COA”) to deny two applications for Minor Variance (“MV”). The Applicant is seeking a relief from Zoning By-law No. 84-63 (“ZBL”), as amended, concerning 1442 Nash Road (“subject property”/“subject lands”) to facilitate the creation of a single detached dwelling lot.

2The subject lands are located at the northwest corner of Nash Road and Varcoe Road in the Courtice Urban Area, in the Municipality of Clarington, Regional Municipality of Durham. The subject property has 22.15 metres (“m”) of street frontage on Nash Road, a lot depth of 36.0 m, and a lot area of 792.2 square metres (“m²”) and includes a single detached dwelling facing Nash Road.

3The subject property is located within a low-rise residential neighbourhood consisting of one- and two-storey detached, semi-detached, link and townhouse dwellings. Further to the south are commercial uses. To the east is a primary public school. Harmony Creek runs to the northwest of the property. Due to the proximity to Harmony Creek, the grade drops from east to west.

4The subject lands are designated Living Areas by the Region of Durham Official Plan (“OP”) and designated Urban Residential by the Clarington OP. Both of these land use designations permit residential dwellings. The ZBL zones the subject lands Urban Residential Type Two (R2) Zone which permits detached residential dwellings.

5Although Municipality planning staff recommended the approval of the MV in the report (Exhibit 3) to the COA, the application was refused.

6The Municipality advised the Tribunal that they will be only observing this hearing.

THE DEVELOPMENT PROPOSAL

7Prior to applying for MV, the Applicant has submitted an application for Consent to Sever (“Consent”) to the Region of Durham Land Division Committee (“Committee”). The Consent application is intending to create one new lot to be conveyed and one lot to be retained. The existing dwelling will be located on the retained lot. The conveyed lot is intended to be developed with one new detached dwelling.

8The Severance application was conditionally approved by the Committee. One of the conditions of the severance was the requirement to submit MVs for the two new lots: to obtain a MV on the retained lot to allow for a reduced rear yard setback to the existing detached dwelling; and to obtain a MV on the conveyed lot to allow for a reduced rear yard setback and a reduced lot coverage.

9The Consent decision is not under appeal and is not before the Tribunal as part of this appeal process.

10Two MV applications were submitted to the COA, one for the retained lot and one for the conveyed lot.

11The Applicant is requesting the following variances from the ZBL to authorize:

1. a rear yard setback of 1.2 m, whereas 7.5 m is required (retained lot);
2. a rear yard setback of 5.6 m, whereas 7.5 m is required (conveyed lot);
3. a lot coverage of 300 m², whereas 370 m² is required (conveyed lot).

STATUS REQUEST

12Prior to the hearing, the Tribunal has received a Party Status request from Dan Lawson, the owner of the neighbouring property, located at 1440 Nash Road. The Tribunal granted Party Status to Mr. Lawson.

LEGISLATIVE FRAMEWORK

13An 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:

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

14In 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 Act to the decision of the approval authority under s. 2.1 of the Act.

WITNESSES

15Michael Fry is a Registered Professional Planner who appeared on behalf of the Applicant/Appellant.

16Brian Moss is a Registered Professional Planner who appeared on behalf of Mr. Lawson.

17After review of Messers. Fry and Moss professional qualifications and confirmation of their Acknowledgement of Expert Duties, the Tribunal qualified Meesers. Fry and Moss to provide expert opinion evidence in the area of land use planning.

EVIDENCE

18Mr. Fry stated that the existing and the proposed residential detached dwelling use is in compliance with the Durham and Clarington OPs, as the subject lands are located within the Built Boundary of the Clarington OP, and the Region of Durham OP applies a Living Areas land use designation to the subject lands. He reviewed the Municipality’s OP policy 10.3.3, that states:

The Municipality will encourage additional development and intensification of the Bowmanville and Courtice Urban Centres and the Courtice Main Street Corridor prior to consideration of the expansion of existing Centres or designating new Centres. New Neighbourhood Centres may be designated through the secondary planning process and/or by amendments to this Plan.

19Mr. Moss opined that while the subject lands are in keeping with the OP as low-density residential lands, in his opinion the proposed development does not meet the intent of the OP.

20In Mr. Fry’s opinion, the existing and the proposed detached dwellings conform to the use permitted in the R2 Zone and satisfies the performance standards of the R2 Zone, except for the minimum rear yard setback and the minimum lot area of the proposed development. He opined:

The general intent of the minimum rear yard setback requirement of the Zoning By-law is to allow for sufficient private outdoor amenity space and to a certain extent to provide for privacy and limit overlook onto adjacent properties. On the retained lot, ample private outdoor amenity space is available within the fenced flanking yard. On the conveyed lot, the lot width and rear yard depth combine for an overall area of 75.7m², which is similar to the outdoor amenity area provided in more compact developments within the Municipality. The existing fence and row of cedars along the rear lot line of the conveyed lot provides a visual barrier to limit overlook and increase privacy for the adjacent property. The general intent of the minimum lot area requirement is to ensure that there is sufficient area on the lot to accommodate a building, parking, and outdoor amenity area. The owners have provided Clarington staff with a concept site plan that demonstrates that all of these components can be provided within the lot and in general conformance with the predominant detached dwelling built form, two-storey building height, and front and side yard setbacks as adjacent dwellings.

21Mr. Moss argued that because the lot size being 19% smaller and the size of the rear yard setback being 25% smaller than what is required by ZBL, it did not meet the intent of the R2 zoning requirements.

22Mr. Fry opined that the proposed development would lead to creation of the affordable housing, intensification and infill of the lands that are located within the built boundary and will rely on the existing municipal servicing. Thus, in his opinion it is consistent with the Provincial Interests of s. 2 of the Act, consistent with the goals and objectives of the Provincial Policy Statement, 2020 (“PPS”) and conforms with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (“Growth Plan”).

23Mr. Moss stated that the proposed development will not be compatible with the surrounding neighbourhood due to the lot size deficiency and smaller than required rear yard setback.

24In Mr. Fry’s opinion the requested variances are minor in nature, as one must consider the impact on the surrounding lands, rather that just to look at the numeric value.

25Mr. Moss reiterated that due to the 25% reduction in the rear yard setback and 19% reduction in the lot size, he does not consider the variances to be minor.

26Mr. Moss raised concerns regarding privacy of Mr. Lawson’s property being at a lower grade level than the proposed development as well as potential issues with the water runoff.

ANALYSIS AND FINDINGS

27Based on a thorough review of the evidence before the Tribunal, including the Work Comments (Exhibit 2), the Planning Comments (Exhibit 3), taking into account professional planning opinion of Messers. Fry and Moss, taking into consideration that the only variance requesting a reduction of a rear yard setback will be directly impacting Mr. Lawson’s property, given the relative experience of Mr. Fry as a land use planner for the affordable housing, the Tribunal prefers Mr. Fry’s opinion evidence.

28The Tribunal finds that the residential use maintains the intent of the OP designation permitting detached residential dwellings. To the intent of the ZBL, the variances are appropriate, as the subject lands are zoned R2, which permits detached residential dwellings. The proposed development is desirable, as it would lead to the creation of the affordable housing, located withing the built boundary and will rely on the existing municipal servicing. The Tribunal agrees with Mr. Fry’s analysis that the requested variances are minor in nature and will not have an undue impact on the surrounding properties.

29Due to the existing topography, the Appellant’s property is at a higher grade level than Mr. Lawson’s. The Appellant has prepared a Grading Plan (Exhibit 4) that shall satisfy the requirements of the engineering department of the Municipality and address the concerns of the water runoff.

30When 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 that:

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.

31The overlook issue from the conveyed lot should be mitigated by the row of cedars and the fence along the rear lot line. The Tribunal finds that the degree of overlook from the proposed development will be minor.

32The Tribunal finds that the variances 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 consistent with the PPS and conform with the GP, and are representative of good planning in the public interest.

ORDER

33THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No. 84-63, as amended, are authorized subject to the following condition:

That the Applicant satisfies all the requirements of the Regional Municipality of Durham concerning the provision of Regional services, financial and otherwise.

“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.