Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 15, 2022
CASE NO(S).: OLT-22-003134
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicants/Appellants: Daniel and Natalie Bottiglia
Subject: Minor Variance
Description: To accommodate the construction of a single detached dwelling on a lot that was recently approved by consent.
Reference Number: A21-004
Property Address: 24 King Street
Municipality/UT: Montague/Lanark
OLT Case No.: OLT-22-003134
OLT Lead Case No.: OLT-22-003134
OLT Case Name: Bottiglia v. Montague (Township)
Heard: July 26, 2022 by Video Hearing
APPEARANCES:
Parties
Daniel and Natalie Bottiglia
Counsel
Jennifer Savini
Parties
Township of Montague
Counsel
Spencer Putnam
Tony E. Fleming
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON JULY 26, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing was convened on July 26, 2022, to consider the appeal by Daniel and Natalie Bottiglia (“Appellants”) from the refusal of the Township of Montague’s (“Township”) Committee of Adjustment (“COA”) to grant a minor variance requested to Zoning By-law No. 3478-2015 (“ZBL”) pursuant to s. 45(12) of the Planning Act (“Act”).
2The Appellants applied to the Township for a minor variance to facilitate the construction of a residential dwelling with a reduced exterior side yard on a property municipally known as 24 King Street, Montague, Ontario (“Subject Property”).
3Prior to the hearing, the Parties confirmed that a settlement had been reached and the agreement would be presented to the Tribunal for approval.
Requested Variance
4The Appellants are seeking variances to ZBL 3478-2015 to reduce the exterior side yard from the required 7.5 metres (“m”) to 4.2 m.
Site and Context
5The Subject Property has an area size of 676.2 square metres (“m2”), with a lot frontage of 18.3 m on King Street, and a lot depth of 37 m along Rideau Avenue South. It is a flat, currently vacant, parcel of land with limited natural features, save for a few boundary lot line trees. The lot was created by a severance approved by consent in 2021, by Lanark County Land Division File No. B20/054.
6It is located within a “Settlement Area,” according to the Official Plan designation. The current zoning of the land is “General Residential (RG),” which allows for single and semi-detached developments.
7The Subject Property is a corner lot on two dead-end streets. There is no side neighbour and both adjacent roads have relatively minimal traffic. The adjacent uses are low-density residential dwellings, consisting of almost exclusively single detached homes of various sizes and shapes. The dwellings opposite the Subject Property, on the west side of Rideau Avenue, are set back approximately 2 m from the street. To the north of the Subject Property, there is a major railway hub.
8The Subject Property falls on the border of the Township and the Town of Smiths Falls (“Smiths Falls”), as Smiths Falls owns and maintains Rideau Avenue South. Smiths Falls is on the east side of Rideau Avenue South, and the Township is on the west side of it.
THE APPLICATION’S BACKGROUND
9The Appellants applied for the following minor variance relief from s. 5.1(2) of the General Residential Zone to permit construction of a dwelling (“Original Plan”):
Reduce the interior side yard setback from 3 m to 1.2 m; and,
Reduce the exterior side yard setback from 7.5 m to 6 m.
10At its first meeting, the COA expressed concerns about the reduced interior side yard setback. The owners proposed maintaining the 3 m interior side yard setback but further reducing the exterior side yard from 7.5 m to 4.2 m (“Final Plan”). The Township’s interim planner recommended this revised proposal, the Final Plan.
11Smith Falls, as the authority having jurisdiction over Rideau Avenue South, had no objection to reducing the exterior side yard setback to 4.2 m as this setback was more than the existing properties on the street.
12The COA denied the application on February 9, 2022. Of note, the COA denied the Original Plan, even though it did have the Final Plan before it.
LEGISLATIVE TESTS
13The Tribunal’s authority to grant variances is given under s.45(1) of the Act, which sets out the four tests that must be satisfied by an Applicant, when making an application for the authorization of variances. The tests require that the variances:
a. maintain the general intent and purpose of the Official Plan;
b. maintain the general intent and purpose of the ZBL;
c. be desirable for the appropriate development or use of the land, building or structure; and,
d. be minor in nature.
14It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant.
THE HEARING
15As evidence in the Hearing, the Tribunal received the following Exhibits which were identified sequentially during the hearing:
Exhibit 1: Joint Document Book
Exhibit 2: The Witness Statement of Forbes Symon
16In support of the settlement agreement reached between the Parties, the Township called one witness and provided the Curriculum Vitae and Acknowledgement of Expert Duty form for Mr. Symon, Land Use Planner, which are found in Exhibit 1. Mr. Symon was qualified, without objection, to provide expert opinion evidence in the field of Land Use Planning.
17It was the professional planning opinion of Mr. Symon that the reduction in the exterior side yard setback from 7.5 m to 4.2 m, the Final Plan, is consistent with the Provincial Policy Statement 2020 (“PPS”), meets the four tests of s. 45(1) of the Act, and is good planning.
18S. 3(5) of the Act directs that a decision of a planning authority shall be consistent with the PPS. Mr. Symon opined that the Final Plan is consistent with the PPS as it enables efficient land use and compatible residential development within the Settlement Area, consistent with Policies 1.1.1, 1.1.3, 1.2.6, and 1.4.
19Mr. Symon then explained that the variance sought in the Final Plan meets the four tests outlined under s. 45 of the Act, as follows:
a. The variance maintains the general intent and purpose of the County of Lanark and Township of Montague Official Plans (“OP”) as it enables a form of permitted residential development within the Settlement Area in an appropriate residential zone, consistent with Township’s OP s. 3.7.1, 3.7.2, and 3.7.3 and County of Lanark’s OP s. 2.3.1.5, 2.6.1, 2.6.2.4, and 8.2.9.2.
b. The variance maintains the general intent and purpose of the Township’s ZBL as it enables a form of development that is permitted in the General Residential zone and would comply with all performance standards except the exterior side yard setback. The intent and purpose of the exterior side yard setback is maintained despite the reduction, as the 4.2 m setback will provide sufficient separation from Rideau Avenue South, King Street, and neighbours to avoid compatibility issues.
c. The variance is appropriate and desirable for the development of the lot as it will enable the use of the lot for a single-family dwelling. The Subject Property is in an area serviced by adequate municipal services from both Smiths Falls and the Township. In other words, this proposal would allow for infilling and intensification in an established area.
d. The variance is minor, as the reduction is not anticipated to create impacts on the property, street, or adjacent users. The neighbourhood has low traffic volume and is undergoing very limited development. Encroachment into the side yard would have very limited impact on Rideau Street.
20Mr. Symon also referenced the staff report by the Township’s Planner, Mary Kirkham, dated January 28, 2022. Ms. Kirkham had also found that the Final Plan application was minor and met the four tests outlined in the Act. She recommended approval of the Final Plan application. Since the Subject Property borders on Smiths Falls, Ms. Kirkham had consulted with representatives from Smiths Falls. She indicated in her report that Smiths Falls had advised that it did not object to the Final Plan application. More specifically, the Public Works and Utilities Department had indicated that the minor variance sought in the Final Plan introduced a development concept that was consistent with the overall streetscape characteristic, and would not hinder Public Works operations. A Smiths Falls Town Planner had found that, as a result, the variance sought would be desirable and appropriate and minor in impact.
21In summary, Mr. Symon testified that the minor variance sought represented good land use planning.
FINDINGS
22The Tribunal is satisfied by the evidence provided by Mr. Symon, through his uncontroverted testimony, that the four tests outlined in s. 45 of the Act have been satisfied, and that the proposal has proper regard for matters of provincial interest found in s. 2 of the Act and is consistent with the PPS. Mr. Symon’s testimony, as well as the totality of evidence before the Tribunal, supports the granting of the minor variance requested in the Final Plan.
ORDER
23THE TRIBUNAL has been asked to consider an application, the Final Plan, which has been slightly amended from the original application, the Original Plan, and the Tribunal has determined, as provided for in s. 45(18.1.1) of the Act, that no further notice is required.
24THE TRIBUNAL ORDERS that the appeal of the Minor Variance is allowed and the following Minor Variance to Zoning By-law No. 3478-2015 is authorized:
a. to reduce the exterior side yard from the required 7.5 m to 4.2 m.
“Bita M. Rajaee”
BITA M. RAJAEE
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.