Islam v. Kingston (City), 2022 CanLII 91063

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 30, 2022

CASE NO(S).: OLT-22-002393

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

Appellant: Sabena Islam

Applicant: Eamonn Flynn

Subject: Minor Variance

Description: To reduce the minimum setback from the floodplain to build a 92.9 square metres 2 storey single family dwelling on the vacant property

Reference Number: D13-009-2021

Property Address: 4336 Bath Road

Municipality/UT: Kingston/Frontenac

OLT Case No: OLT-22-002393

OLT Case Name: Islam v. Kingston (City)

Heard: September 13, 14, 15, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Eamonn Flynn ("Applicant")

Ursula Melinz Crystal McConkey

Sabena Islam ("Appellant")

Richard Taylor

DECISION DELIVERED BY ERIC S. CROWE and ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Sabena Islam ("Appellant") against the decision of the City of Kingston ("City"), Committee of Adjustment’s ("CoA"), in relation to a minor variance from Zoning By-law No. 76-26 ("ZBL") concerning 4336 Bath Road, Kingston ("Subject Property" / "Subject Site").

2Eamonn Flynn ("Applicant") is requesting a minor variance to reduce the minimum setback from the floodplain of 5.0 metres ("m") from the required 7.6 m to build a 92.9 square metre ("m²") two storey single family dwelling on the vacant property. The Staff Planning Report recommended approval with conditions and subsequently CoA approved the application on January 17, 2022 with conditions. On February 6, 2022, the Appellant filed her Notice of Appeal.

PARTICIPANT STATUS

3Upon the commencement of the Hearing, the Tribunal recognized four (4) requests for Participant Status. The Tribunal was in receipt of and considered the contents of their statements. There were no objections raised by either Party to the Participant requests.

4The Tribunal granted Participant Status on consent to Omar Islam (Husband of the Appellant), Harold and Beverly Presley, Joseph and Margarita O'Connor, and Sohil Tahamtan and Rosita Safavi.

5All of the Participants objected to the proposed minor variance. The concerns raised by those opposed were primarily the small lot size, Septic System design, Environmental Impact and Due process which are addressed below as part of the Tribunal’s analysis of the matter.

BACKGROUND

6In 2006 an Ontario Municipal Board ("OMB") decision concerned minor variance applications under section 45(12) of the Planning Act ("Act") on the Subject Property. In that case there were different owners and different variances than the present case. In the 2006 case the City planning staff recommended approval of the variances, and the CoA authorized them, but two neighbours including Sabena Islam and Omar Islam (Appellant’s in this current case) appealed to the OMB.

7At the 2006 hearing, an official of the Ministry of Transportation ("MTO") testified that the proposal did not comply with MTO policies; and although the City was not formally represented at the hearing, its planner who had originally recommended approval (testifying under summons) said that had he known then what MTO now said, he would not have recommended it. Board Member Denhez concluded the proposal did not meet the terms of the Act for a variance, and the appeal was allowed.

8In 2015 the Subject Property was subject to another appeal to the OMB of consent under section 53(19) of the Act. The current Applicants and Appellants were both part of that appeal. This dispute was about a proposed lot boundary adjustment of approximately five feet. Board Member Denhez allowed the appeal in part to authorize a provisional consent subject to seven conditions.

9On June 30, 2022, a Case Management Conference ("CMC") was held for this case which produced a detailed final Procedural Order and Issues List.

BRIEF CHRONOLOGY OF THE APPLICATION

10The City circulated the first round of technical comments on March 16, 2021. The comments included input from a range of municipal departments and external agencies. The only comments were provided by the City Building Department, pertaining primarily to additional required information regarding the proposed septic system. The MTO noted no concerns with the proposal.

11A technical response letter was submitted by Fotenn, an urban design and landscape architecture firm for the Applicant, dated March 22, 2021. The response package included a revised concept plan, revised floor plans, revised septic and servicing plan, and Building Materials Evaluation Commission ("BMEC") authorization.

12The second round of technical comments were circulated via e-mail on April 26, 2021, requesting some additional information and documentation pertaining to various detailed elements of the proposal. A technical response letter was submitted by Fotenn, dated August 16, 2021. The response package included a revised concept plan, revised floor plans, revised septic and servicing plan, and a letter from Enviro-STEP Technologies Inc.

13As part of the resubmission package dated August 16, 2021, the proposed setback to the floodplain was reduced from 6.0 m to 5.0 m to accommodate the proposed dwelling and septic system while maintaining the necessary setbacks from Bath Road. Accordingly, the proposed minor variance would now have the effect of permitting development of a single-detached dwelling 5.0 m from the floodplain.

14The third round of technical comments were circulated on October 4, 2021. In addition to various minor comments from the City, the MTO noted no concerns with the proposed development.

15In addition, the Cataraqui Region Conservation Authority ("CRCA") provided comments in a letter date September 2, 2021. The CRCA noted that the proposed development, at a 5.0 m setback from the floodplain, is appropriate, minor in nature, and in keeping with the intent of the ZBL and Official Plan ("OP"). Furthermore, CRCA Staff do not anticipate any negative impacts to water quality and ecology integrity of Lake Ontario as a result of the proposed development. In summary, the CRCA noted no objections to the proposed development.

16A technical response letter was submitted by Fotenn, dated November 4, 2021. The response package included a revised concept plan, and email correspondence between City Building and Plumbing Official, Juanita Evans advising no further concerns and advising a building construction permit will be required for the proposed septic system.

17The fourth and final round of technical comments were circulated via e-mail by the City on January 5, 2022. An additional letter from the CRCA was received on January 13, 2022, as well. The CRCA again noted no objections to the proposed development.

THE REQUESTED VARIANCE

18The purpose of the minor variance application was to obtain relief from section 5.6(b) of the ZBL, in order to permit the proposed development. Whereas section 5.6(b) of the ZBL states that no building shall be erected or altered within 25 feet (7.6 m) of a flood plain, the proposed variance would have the effect of permitting the development of a single-detached dwelling within 5.0 m of the floodplain. No other variances were required to permit the proposed development.

19Access to the Subject Property will be provided by way of a 3.0 m driveway from Bath Road. It is anticipated that an entrance permit will be required from the MTO. One vehicular parking space is located within the attached garage.

20The proposed development will be serviced by existing municipal water services. As the site is not currently serviced by municipal sewage services, a private on-site sewage system is proposed. A septic system has been specifically designed for the site by Groundwork Engineering.

SUBJECT PROPERTY AND SURROUNDING AREA

21The Subject Property is known municipally as 4336 Bath Road in the City of Kingston. The Subject Site is located in the Mile Square neighbourhood, on the south side of Bath Road (Highway 33), adjacent to Collins Bay. The site has an area of approximately 584.6 m² and contains approximately 17.2 m of frontage along Bath Road.

22The topography of the site is characterized by a low-lying, relatively flat area directly adjacent to the shoreline that rises significantly up a slope to a level plateau area adjacent to Bath Road.

23The Subject Property currently contains a wood retaining wall, staircase, wood frame deck and a concrete shore wall extending along the shoreline adjacent to Collins Bay.

24The surrounding area is primarily characterized by residential and open space uses. The Subject Site is in proximity to parkland and open spaces including Arthur Lower Park. Building heights in the surrounding neighbourhood range from 1 to 2-storeys.

25The Subject Property has some constraints due to the size of the existing lot, the location of the floodplain, and the required setbacks from Bath Road. Several dwellings along this portion of Bath Road have reduced floodplain setbacks given the existing depth of the lot fabric, which ultimately limits the area of potential building envelopes.

LEGISLATIVE FRAMEWORK

26An appeal pursuant to section 45 of the Act is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in section 45(1) have been met, namely that the requested variance:

a. maintains the general intent and purpose of the official plan ("OP");

b. maintains the general intent and purpose of the ZBL;

c. is minor in nature; and

d. is desirable for the appropriate development or use of the land, building or structure.

27In addition, section 3(5) of the Act requires the Tribunal’s decision be consistent with the Provincial Policy Statement, 2020 ("PPS").

28The Tribunal must also have regard to the matters of provincial interest set out in section 2 of the Act, as well as for the decision of the Committee and the information considered in the course of making its decision, as set out in section 2.1(1) of the Act.

WITNESSES

29The Appellant called Robert Clark, a Registered Professional Planner and a member of the Ontario Professional Planning Institute (RPP), and Canadian Institute of Panners (MCIP) who was qualified on consent by the Tribunal to provide expert land use planning opinion evidence. Mr. Clark was also involved with the Subject Property in 2006 and 2015 at the OMB hearings.

30The Appellant counsel called Sabena Islam the neighbour and Appellant in this hearing. Ms. Islam has a design engineering degree who has maintained her engineering license but is not currently practicing. Ms. Islam was also the Appellant in the 2006 and 2015 OMB hearings.

31The Appellant also called Anne Egan, a Registered Professional Engineer who specializes in onsite and decentralized wastewater treatment and disposal systems. Ms. Eagan was qualified on consent by the Tribunal to provide expert engineering opinion evidence.

32The Applicant called Michael Keene, a Registered Professional Planner and a member of the RPP and MCIP with Fotenn Consultants Inc. ("Fotenn") who was qualified on consent by the Tribunal to provide expert land use planning opinion evidence. Mr. Keene was retained in February 2020 to assist the Applicant with developing the lot for a single detached dwelling. Prior to conducting a pre-consultation meeting, a large period of information gathering and design occurred including topographic surveying as well as house and septic system design.

33The Applicant also summoned James Bar, a Registered Professional Planner and member of the RPP and MCIP and the current Manager of Development approvals at the City. Mr. Bar was qualified on consent by the Tribunal to provide expert land use planning opinion evidence.

34The Applicant called Martin Burger, a Registered Professional Engineer whose company, Groundwork Engineering Company, provides Geotechnical, Onsite Wastewater, Stormwater and Civil engineering services for commercial, industrial and residential developments. Mr. Burger was qualified on consent by the Tribunal to provide expert engineering opinion evidence.

ISSUES AND PLANNING EVIDENCE

35The Tribunal finds it to be clear, through the evidence of the respective parties, that there are several issues within and outside the jurisdiction of the Tribunal in regard to a minor variance application. The Tribunal has highlighted the respective differing opinions of the Parties’ experts/positions in dispute including whether the minor variance application is premature with the Appellant having no confidence in whether there will be no adverse impacts to her property due to not enough information provided, which in her opinion, is not appropriate to wait for building permit process.

Provincial Interests, PPS

36Mr. Clark highlighted PPS Part V, Section 1.1.1 which includes:

c) avoiding development and land use patterns which may cause environmental or public health and safety concern;

37Mr. Clark advised this principle is elaborated on by the servicing policies found in section 1.6 of the PPS. Mr. Clark contends, the policy requires suitable site conditions for the installation of private on-site sewage services. In this case, the Subject Property even with the additional lands from the consents, is too small to accommodate a Class 4 leaching bed system. Also, it is not possible to install a septic system in the rear yard because it would be entirely in the floodplain and inaccessible for maintenance.

38Mr. Clark opined, the resultant lot is too small to accommodate the proposed development in accordance with required setbacks and this is not consistent with the PPS. Therefore, the minor variance and the resultant development should not be approved.

39Mr. Keene, submitted, the proposed development supports the creation of healthy, livable and safe communities in so far as it represents appropriate residential infilling of existing vacant and underutilized land. The minor variance will permit construction of a single residential dwelling within the settlement area. No environmental or public health and safety concerns are anticipated as a result of the proposed development. Residential infill within existing neighbourhoods helps to mitigate the need for future expansions of settlement areas. The development will utilize existing municipal water services and a private septic system. There is sufficient capacity within the existing municipal water system to accommodate the proposed development. The proposed development is not anticipated to have any adverse impact to the local environment or biodiversity.

40In response to section 1.6.6.5 of the PPS concerning settlement areas, Mr. Keene advised, the proposed development will operate on municipal water services and private on-site sewage services. Municipal sewage services are not available at this location within the settlement area. Partial services are consistent with the predominant development pattern in the area and will serve to round out existing development by permitting construction on one of the few remaining vacant parcels of land. The proposed partial services are appropriate for the site conditions and the long-term provision of such services with no negative impacts to the function of the site, adjacent lands, or the natural environment.

FOUR TESTS

Is the variance minor in nature?

41Mr. Clark and Ms. Islam both testified that the proposed development does not have the appropriate stormwater management facilities to reduce the impact of additional runoff which will impact the Appellant’s property and therefore, the variance is not minor in nature.

42Mr. Keene took the Tribunal through a detailed evaluation of the requested variance against the four tests in section 45(1).

43The Tribunal briefly summarizes Mr. Keene’s opinion as follows: Mr. Keene explained, the proposed reduction to the flood plain setback is not anticipated to cause adverse effects, nor will it change the overall character or nature of the Subject Site. The proposed variance is considered minor in nature in that it will not have a negative impact on the surrounding area and will largely maintain the nature of existing waterfront development in the surrounding neighbourhood. An engineering solution for the lot drainage and grading will be required and plans for this is part of the building permit approval.

44It is Mr. Keene’s opinion the requested variance is minor in nature.

Does the variance maintain the general intent and purpose of the OP?

45The Subject Property is designated Residential and Environmental Protection Area on Schedule 3-A Land Use of the OP. Section 3.3 provides policy direction for the Residential Designation. The predominant use within the Residential designation is residential dwellings including detached, semi-detached, or duplex dwellings. The proposed development of a single-detached dwelling is permitted within the residential designation.

46Mr. Clark opined, the minor variance for the reduction of the setback from the flood plain may reflect the setback of other structures along the shoreline, but is not sufficient to address the proposed construction on this undersized lot, as there are concerns with the consideration of this lot as an existing lot of record and there are other zoning and development issues, such as the suitability of the site for a private septic system and the provision of appropriate Stormwater Management Facilities to reduce the impact of additional runoff due to the density of development proposed. Mr. Clark highlighted several sections of the OP which will be discussed below.

Section 2.6, Protecting Stable Areas

47Mr. Clark highlighted section 2.6.1 which in his opinion, indicates that it is the intent of this OP to promote development in areas where change is desired, while protecting stable area from incompatible development or types of development and rates of change that may be destabilizing.

48Mr. Clark opined, that the proposed development does not meet the test as outlined in section 2.6.3 with respect to the proposed development being compatible with the prevailing pattern of development on the adjacent lands.

49Mr. Keene testified the proposed variance meets the intent of section 2 of the OP. The Subject Property is designated Housing District of the OP, an area generally intended to remain stable with residential housing. In Mr. Keene’s opinion, the intent of the OP is to protect stable areas from incompatible development. The proposed development of a single-detached dwelling is in keeping with the nature of development in the surrounding area, where the predominate built form is single detached dwellings with reduced setbacks from the flood plain. Thus, the variance from the flood plain setback will not result in negative impacts to the neighbouring properties.

Section 3.3, Residential Uses

50Mr. Clark highlighted section 3.3 Residential Uses. Section 3.3.6 states that Existing Housing Districts as shown on Schedule 2 are considered stable, unless otherwise identified by the OP. Only minor changes in the predominant pattern of housing type, height or density are permitted in accordance with section 2.6.

51Section 3.3.8 states that within the Urban Boundary, intensification through moderate increases in building height or density may be considered at the edge of neighbourhoods, provided that the development is adjacent to one or more of the following: transit routes, community facilities, area of open space, or mixed-use centres or corridors, as identified on Schedule 2.

52Mr. Keene testified the predominant use within the Residential designation is residential dwellings including detached, semi-detached or duplex dwellings. The proposed development of a single-detached dwelling is permitted within the residential designation and is consistent with the existing built form in the surrounding area.

Section 3.9, Waterfront Protection "Ribbon of life"

53Mr. Clark highlighted section 3.9 Waterfront Protection "Ribbon of Life". In Mr. Clark’s opinion, section 3.9.2 will require the submission of an Environmental Impact Assessment ("EIA") and any other technical studies deemed necessary by the City. Further, development proposals must demonstrate how the natural aesthetic of the waterfront will be maintained or enhanced, and how spaces for passive recreation may be accommodated.

54Mr. Clark noted section 3.9.6, which states that on lots existing as of the date of adoption of the OP, new development must be located outside of the 30 m "ribbon of life", unless one of the following two circumstances applies:

a. where the depth of a lot, existing as of the date of adoption of this Plan, is insufficient to accommodate a modest amount of development and any related servicing outside of the 30 metre water setback, subject to Section 3.9.8; and

b. for the enlargement of a building, structure, or facility which existed on the date of adoption of this Plan, provided the enlargement does not further encroach into the existing water setback, subject to Section 3.9.8.

55Mr. Clark opined, section 3.9.8 states that applications for relief from the 30 m water setback, as outlined in the ZBL, must demonstrate how the proposal upholds the policy objectives outlined in section 3.9.2 and will require the submission of an EIA and any other technical studies deemed necessary by the City. Further, development proposals must demonstrate how the natural aesthetic of the waterfront will be maintained or enhanced, and how spaces for passive recreation may be accommodated.

56According to Mr. Keene, the "ribbon of life" policies are to be implemented through zoning controls by the City. There is no specific 30 m setback requirement under ZBL 76-26 which applies. The proposed development meets the intent of the "ribbon of life" policies per policy 3.9.6. subsection (a) which states that new development on existing lots must be located outside the 30 m setback unless the lot depth of an existing lot is insufficient to accommodate modest development and related servicing outside a 30 m setback. The depth of the lot is such that it is not possible to allow modest development and associated servicing within the 30 m setback. As such, even if the 30 m "ribbon of life" setback applied to the Subject Property, the OP acknowledges and permits development on existing lots where such a setback would be prohibitive to modest development.

57It is Mr. Keene’s opinion, that the proposed development represents modest development of the Subject Property. The proposal seeks to maximize the setback from the flood plain and waterfront to the dwelling, while balancing the need to provide a suitable dwelling size, maintain required setbacks from the provincial highway, and accommodate an on-site sewage system. This is consistent with the policy direction and "ribbon of life" objectives noted under policy 3.9.8 of the OP. The CRCA and City have also indicated support for the proposal as currently designed.

Section 3.10, Environmental Protection Areas - Includes Riparian Rights Areas

58Mr. Clark advised the shoreline and a considerable width of the lands along the shoreline are designated Environmental Protection Area ("EPA"). These are riparian corridors and referenced in section 3.9. Mr. Clark opined, while this designation recognizes legal non-conforming uses and uses on lots of record, the intention is that development on or adjacent to these EPA’s will require an EIA to evaluate the potential impact of development on the natural area and the water quality of the receiving water body.

59Mr. Keene advised, the OP acknowledges that the boundaries are approximate and are to be more specifically delineated on site in consultation with CRCA or the Ministry of Natural Resources and Forestry, as appropriate. Section 3.10.2.1 of the OP states that where an EPA designation is solely tied to riparian corridors, permitted land uses on existing lots may include the permitted land uses of another land use designation applicable to the lot. Mr. Keene opined, the site’s EPA designation is solely tied to the presence of a riparian corridor located along the shoreline of Collins Bay. Therefore, as the Residential designation is also applicable to the Subject Property, the proposed single-detached dwelling is permitted within the EPA designation.

Section, 4.2 Municipal Water and Sewage

60Section 4.2.7 states that no new development based on individual on-site water and sewage service is permitted within the Urban Boundary. In Mr. Clark’s opinion, this would preclude the proposed development.

61Mr. Keene advised partial services within the Urban Boundary are permitted in accordance with policy 4.2.11 of the OP.

62Mr. Keene advised, the proposed development represents minor infilling and rounding out of an existing developed area along Bath Road. The Planning Report noted the site does not require the extension of a watermain, the sites condition has been found to be suitable for the installation of the septic system subject to all building permit requirements, and it does not jeopardize orderly future development. In Mr. Keene’s opinion, the proposed development conforms with the sewage policies outlined in the OP, and policy 4.2.7 of the OP which states "no new development based on individual on-site water and sewage services is permitted within the Urban Boundary. Replacements for existing wells or septic tanks are permitted if necessary" does not apply to the proposed development.

Section, 4.3 Stormwater Management

63Mr. Clark highlighted section 4.3.3 which requires that stormwater management be adequately studied and appropriately addressed in any development proposal. In Mr. Clark’s opinion, in the absence of a lot grading and drainage plan it is not possible to confirm that the proposed development will meet the criteria outlined in section 4.3.3. This is particularly important in view of the limited side yards, the slope and the adjacent retaining walls. It is his opinion that on a challenging site such as this, the OP policy requires that proof of the ability to address stormwater particularly when a development proposal is provided as part of the supporting documentation is required.

64Mr. Keene and Mr. Bar testified that a Lot Drainage Plan is not relevant to the decision to approve the minor variance application as it will be required under the building permit. Should any adjustments to the plan to accommodate drainage result in changes that fail to comply with the applicable provisions of the ZBL or approved variances, further land use approvals would be required prior to issuance of building permits as is the normal process. A Lot Drainage Plan is anticipated to be required as part of the building permit approval process. This is a typical requirement and would not ordinarily be required prior to the approval of a minor variance application.

65Mr. Burger also testified that the appropriate time to prepare the drainage and grading plan is as part of the building permit process. The building envelope must be known (following the variance process) so detailed design may proceed including determining the treatment of the lot drainage and grading. In accordance with the ZBL no surface storm runoff is to drain on an adjacent lot unless through a registered storm drain easement. The lot can be drained front to back or split with a portion draining towards Bath Road and the remainder towards the lake.

Does the variance maintain the general intent and purpose of the ZBL?

66The Subject Property is zoned Residential Type 1 Zone (R1) under the ZBL. Section 5.6(b) states that no building shall be erected or altered within 25 feet (7.62 m) of a flood plain. In contrast, the proposed development provides only a 5.0 m setback from the flood plain.

67Mr. Clark argued, the R1 regulations establish minimum lot requirements for residential development. The minimum lot area for a single-family dwelling on a lot serviced only by a public water system or a sanitary sewer system is 1,393.5 m² (15,000 square feet). The Subject Property after merger of the consents, will have a lot area of 391.6 m².

68In Mr. Clark’s opinion, this does not count the area located in the floodplain, which should be deducted from the lot area in accordance with section 5(6)(c) which states that "No part of any flood plan shall be used to calculate any of the zone provisions required by this by-law." In addition, there is further restriction in section 5(6)(b) noting that "no building shall be created or altered within 25 feet of a floodplain." This was the subject of the approved minor variance.

69In Mr. Clark’s opinion, the minimum lot frontage requirement for lots serviced by only a public water system or a sanitary sewer is 30 m (100 feet). In the present form, the lot does not have the required minimum lot frontage.

70Mr. Keene testified the new single detached dwelling is proposed to be setback approximately 5.0 m from the floodplain, in accordance with the CRCA policies. The gross floor area of the proposed dwelling has been kept under 93 m² to maximize space for access between structures.

71Mr. Keene opined, the intent of the flood plain setback is to provide safe access between buildings and structures and the flood plain, to provide an appropriate factor for safety in the case of an emergency. The proposed single-detached dwelling remains outside the hazard area and well above the flood level, allowing for adequate access and protections from potential damage during flood events.

72Mr. Keene concluded, the proposed development meets the balance of the Residential Type 1 Zone (R1) requirements. The requested variance continues to meet the general intent and purpose of the relevant zone provisions and therefore, maintains the general intent and purpose of the ZBL overall.

Lot of Record

73Mr. Clark contends the OMB hearing decisions, challenge the claim that the existing lot qualifies as a lot of record. ZBL 76-26, which continues to be in effect and was in effect at the time of the CoA decision on the current application, defines "Existing" to mean existing on the date of passing of this by-law. (July 8, 1976) - Section 4(51). Section 5(13)(d) of By-law 76-26 states:

Where a lot having lesser lot area and/or lot frontage than that required herein is held under distinct and separate ownership from abutting lots, as shown by a registered conveyance in the records of the Registry or Land Titles Office on the date of passing of this by-law, or where such lot is created as a result of an expropriation, such smaller lot may be used and a building or structure may be erected, altered or used on such smaller lot, provided that all other requirements of this by-law are complied with.

74Mr. Clark added, as the term "lot of record" is not defined in the ZBL and as section 13(d) still requires the development to meet all other provisions of the ZBL, he interprets this clause to allow an exception only for lot area and lot frontage which existed at the time of passing of ZBL 76-26.

75Mr. Keene testified that the Subject Property has a long history. It is comprised of multiple parts, which combine to form the whole. The original lot known as 4336 Bath Road was created March 18, 1963. Subsequently in 2015, through the approval by the OMB, a strip of land on the west side was added to the lot, resulting in the current lot fabric.

76Mr. Keene and Mr. Bar both noted as the original lot was created in 1963, prior to the passing of ZBL 76-26, and it is both of their opinions that it constitutes an existing lot of record. Mr. Bar testified Planning Staff reviewed the title history of the property additions and improvements in 1962 and still consider it a lot of record which has continuously improved from crown patent and neighbour’s parcel as part of their technical review. In their opinion’s, the subsequent additions to the lot have only served to improve the overall size and function of the lot in accordance with the Act which was registered on title when the parcel was conveyed.

77Mr. Keene and Mr. Bar both acknowledge, the Subject Property is deficient in lot area from the requirements of the ZBL. However, in their opinion, although the existing lot area does not meet the minimum lot area provision outlined under the ZBL, it is exempt due to the fact that the site is an existing lot of record and therefore, may be used and a building may be erected.

78Mr. Clark, acknowledged under cross examination that the Subject Property existed in 1963 prior to the coming into force of the 1976 ZBL.

Restricted Covenant on Subject Lands

79Mr. Clark argued the Subject Property is subject to a covenant included on the lands known as 4338 Bath Road. The covenant states no buildings or structures shall be constructed. Mr. Clark contends the implications of this covenant were not addressed in the Planning Report to the CoA nor in its decision.

80Mr. Keene submitted he has reviewed the land registry records for the Subject Property and finds that there is no restrictive covenant registered on title for the Subject Property, as confirmed below:

i. A Restrictive covenant was registered on title to 4338 Bath Road in 1981, as per PIN 36126-0769 and FR349398Z.

ii. On February 18, 2016, the sliver parcel was transferred to the Applicant without the restrictive covenant being conveyed or registered on title, as per PIN 36126-0767.

iii. On May 30, 2016, the Carriere’s (owners of 4338 Bath Road at the time) applied to the Land Registrar to discharge the restrictive covenant (FR349398Z) on title to 4338 Bath Road, as per FC219842.

81On cross examination, the Applicant’s counsel highlighted the restrictive covenant referenced by the Appellant as being on title to 4338 Bath Road had been deleted from title and was never on title to any portion of 4336 Bath Road. Mr. Clark conceded that the restrictive covenant that had been registered on title to 4338 Bath Road in 1981, was deleted from title including for the sliver parcel.

82Counsel for the Applicant submits, which the Tribunal agrees, the Subject Property is a legal non-compliant lot of record and that the addition of the lands does not eliminate the property’s protected legal non-conforming status under the Act as an existing lot of record.

Private Sewage System

83Mr. Clark advised, section 5(13)(e) of the OP provides for lot servicing requirements. It states:

No person shall erect any building or structure or use any lot in any zone, unless it is proven that the lot will have adequate capacity for sanitary sewer, stormwater sewer, septic facilities and potable water.

84Mr. Clark opined, that based on the setbacks the proposed development does not have adequate area or setbacks to accommodate the proposed septic system and the Applicant has failed to demonstrate a septic facility that will have adequate capacity for the proposed building on the lot. The proposed lot is too small to meet this requirement as outlined in the ZBL.

85Mr. Clark also highlighted section 4(169) (a) and (b) which define "Front Yard" and "Front Yard Depth", respectively:

(a) "Front Yard" means a yard extending across the full width of the lot between the front lot line of the lot and the nearest part of any excavation, or main building on the lot.

(b) "Front Yard Depth" means the least horizontal dimension between the front lot line of the lot and the nearest part of any building, structure or excavation on the lot, or the nearest open storage use on the lot.

86Section 4(153) defines "Structure":

"Structure" means anything constructed or erected, the use of which requires location on or in the ground, or attached to something having location on or in the ground.

87Mr. Clark opined the proposed development does not meet the required front yard depth due to the proposed location of the septic system in the required front yard.

88Ms. Eagan testified that the onsite sewage system is proposed to consist of a septic tank, pump chamber and Eljen System. She submitted that given the site constraints, in her opinion a detailed topographic survey should have been used as the basis to develop an accurate and detailed site plan to support the planning application.

89Ms. Eagan submitted, the design of the sewage system proposes to locate a significant portion of the Eljen system underneath a driveway area. In her opinion this does not meet the requirements of the Ontario Building Code Act ("OBC"), and the proper functioning of the dispersal bed is expected to be impacted as a result.

90Ms. Eagan testified in her years of experience she has never had a sewage system located underneath a driveway and would never recommend this. Ms. Egan did acknowledge she is less concerned about compaction of the soil due to the permeable pavers that are to be used for the driveway. Ms. Eagan testified, placing a septic system underneath a driveway is generally not accepted and she advises they don’t do that usually.

91Ms. Eagan testified the performance of the system is maxed out for proper sewage treatment for the site and contravenes the OBC and authorization of the Eljen system. In Ms. Eagan’s opinion, the BMEC Guidelines are specific with terms and conditions and the letter of opinion dated June 23, 2021 (Exhibit 14, see attachment 3) by Enviro-STEP Technologies submitted by Mr. Burger for approval of the Eljen system to use under a driveway, is not appropriate as they are not independent holder of BMEC and have no authority to change terms and conditions which only can be amended by BMEC.

92Under cross-examination Ms. Eagan acknowledged if the City Building Department decide the design and location of the Eljen system doesn’t work, other system options are limited but there could be an engineering solution.

93Mr. Burger testified that Groundwork Engineering completed an in-depth analysis of site conditions, available dispersal area, proposed daily design sewage flow and different Level 4 Class 4 systems before completing the design. The Eljen system is one of several Level 4 Class 4 onsite wastewater treatment systems that are approved by the OBC. The design includes the use of a geogrid reinforced permeable paver system for the driveway to allow air to enter the dispersal bed sand below.

94Mr. Burger advised, the consultant team went through a number of design iterations before submission of the application. The design was reviewed and approved by Enviro-STEP Technologies Inc., engineer for the Eljen system in Canada. They liaised directly with the City Building Department to answer the requests for clarification and justification that were brought forward during technical review of the variance application.

95Under cross examination, Mr. Burger was questioned on the reliance of the Enviro-STEP opinion letter for the use of the Eljen system under the driveway, accordingly, with no background data or investigation or reliance on any studies research that would justify this opinion. Mr. Burger responded stating, an independent company has reviewed the design and a portion of the pavers will provide opportunities of evaporation, consolidation and compaction that is required for hydraulic continuity.

96In Mr. Burger’s opinion, there is no definition of the term "structure" provided under the ZBL and it has been his experience that zoning setback review completed by City relies on clearance distance requirements provided in the OBC. He testified he would be "shocked" if a septic system was included in the definition of structure. Therefore, the design addresses all concerns brought forward by the City, CRCA and MTO. In addition, the design meets the setback requirements of the OBC and MTO which is a high level of treatment with sufficient servicing over a long period of time.

97Mr. Keene testified that based on his experience in the City, it is his opinion that the proposed septic system, being entirely below existing grade, is not subject to section 12(2)(c) of the ZBL – being the front yard depth provision of the R1 Zone.

98Both Mr. Keene and Mr. Bar testified that historically, the City has not regulated private sewage systems through the City’s Zoning By-laws, except in limited circumstances, as the location and specifications for private sewage systems are strictly regulated under the OBC and under the EPA.

99Mr. Bar referenced an email dated June 7, 2022 to Mr. Keene and testified that this approach has been formalized in the new City ZBL, which states that the ZBL does not apply to private waste disposal systems.

100Mr. Keene and Mr. Bar both testified to the fact that although the new City ZBL 2022-62 is not yet in force and effect due to ongoing appeals, it serves to confirm and formalize the historic interpretation of the City with regards to the application of zoning provisions against building or structure components (including private sewage systems) which are wholly below grade.

Is the variance desirable for the appropriate development?

101Mr. Clark emphasized the current lot characteristics. He advised the lot areas include an area in the flood plain. In the case of the resultant lot 4336 Bath Road, approximately 317 m², or 50% of the lot area appears to be at the lower elevation, and subject to flooding. The substantial portion of the remainder of the lot fronting on Bath Road slopes down to the lower level.

101Mr. Clark highlighted that lots along Bath Road have extensive frontages, and the buildings are sited with wide side yards. These larger lot frontages allow for a greater land base above the flood plain, easy access to the rear yards and the shoreline of Lake Ontario and provide space for the installation of private sewage facilities.

103Mr. Clark opined, the proposed development on a significantly undersized lot is out of character with the surrounding area. The subject lot is smaller in lot area and lot frontage than required by the ZBL. A lot so substantially undersized is not in character with the neighbouring lots and is not appropriate for development.

104Mr. Keene advised the OP provides guidance for determining the desirability of a minor variance. Section 9.5.19 of the OP states that when considering whether a variance is desirable for the appropriate development or use of the land, building or structure, the CoA will have regard for, but will not necessarily be limited to, the following:

a. the proposed development meets the intent of Section 2 Strategic Policy Direction, and all other applicable policies of this Plan;

105Mr. Keene advised, the requested variance is sought to provide a suitable building envelope to permit the development of a 2-storey single-detached dwelling on the Subject Property. The resulting built form maintains the character of the surrounding area, where the predominate built form is single detached dwellings ranging in height from 1 to 2-storeys. The proposed development meets the required yard setbacks of the ZBL and represents the efficient use of an existing vacant parcel within the urban boundary. Given the amount of previous disturbance on the site, and the fact that the new development will not encroach closer than the existing retaining wall, no negative impacts to surrounding natural heritage features are anticipated. In Mr. Keene’s opinion, the proposed development is appropriate for the Subject Property and is consistent with the nature of waterfront development along this portion of Bath Road.

106Mr. Keene testified the proposed development represents a "modest amount of development" in relation to the site, adjacent properties and neighbourhood. The OP does not define "modest" as the interpretation of modest is context-specific and could vary widely from one site to another. In order to determine whether the proposal is modest, we must consider the context of the site, neighbourhood context, and any other policy direction that may be available.

107Mr. Keene advised, the proposed dwelling has a footprint of 92.9 m², which is notably smaller than most existing dwellings in the vicinity. The proposed dwelling will be setback farther from the shoreline than the adjacent neighbouring dwellings. Similarly, the proposal will be setback 24.2 m from the centerline of Bath Road which is similar or greater than the setback provided by nearby existing dwellings. Accordingly, within the context of the broader neighbourhood, the proposed development is modest and would have no significant impact on the character of the area.

108Mr. Keene opined, the proposed development represents modest development of the Subject Property. The proposal seeks to maximize the setback from the flood plain and waterfront to the dwelling, while balancing the need to provide a suitable dwelling size, maintain required setbacks from the provincial highway, and accommodate an on-site sewage system. This is consistent with the policy direction and "Ribbon of Life" objectives noted under policy 3.9.8 of the OP. The CRCA and City have also indicated support for the proposal as currently designed.

OTHER ISSUES

MTO Approval

109Mr. Clark explained a 5.0 m setback is proposed to the floodplain at the rear of the Subject Property. Access to the Subject Property will be provided by way of a 3.0 m driveway from Bath Road. It is anticipated that an entrance permit will be required from the MTO. One vehicular parking space is located within the attached garage.

110Mr. Clark highlighted the Public Transportation and Highway Improvement Act, ("PTHIA") under section 34(2)(a)), states:

(2) Despite any general or special Act, regulation, by-law or other authority, no person shall, except under a permit therefor from the Minister,

(a) place, erect or alter any building, fence, gasoline pump or other structure or any road, or perform any grading upon or within 45 metres of any limit of the King’s Highway or upon or within 180 metres of the centre point of an intersection;

111Mr. Clark contends under the PTHIA, structure is defined to "include any above or below ground installation or infrastructure". Therefore, in his opinion, that neither the septic system, nor the structure itself meets this requirement as outlined in section 34(2), of the PTHIA.

112Mr. Clark also submitted the City OP requires that a 6 m road widening be provided to achieve the designated width of 42 m for Bath Road. This is based on an existing road width of approximately 30 m at this location.

113Mr. Keene advised given that Bath Road is a provincial highway, the proposed development is subject to subsection 5(20)(a)(i) of the ZBL. The minimum required setback from a provincial highway is 60 feet plus the minimum front yard depth of 20 feet, for a total setback requirement of 80 feet or 24.4 m – as measured from the centerline of the right-of-way.

114Mr. Keene advised, the proposed development will be accessed from Bath Road by way of a 3 m wide single lane driveway. MTO has no objection to the proposed access, as long as the driveway connects to Bath Road at a 90-degree angle. Mr. Keene opined, it is anticipated that this modification can be easily accommodated through the permit review process. It has no impact on the required land use approvals. The proposed development provides on-site parking located in the attached garage.

115Mr. Keene opined, the proposed residential building is setback at least 24.4 m from the centerline of Bath Road and is therefore in conformity with the ZBL and no additional variances are required regarding this matter.

116Mr. Keene submitted Bath Road is part of the Loyalist Parkway (also known as King’s Highway 33). It is therefore no longer a municipal road at this location and not subject to the typical application of road widening requirements under the OP. As per the OP, Loyalist Parkway (provincial jurisdiction) begins west of the intersection with Collin’s Bay Road. It is one of the multiple highways within the City under the jurisdiction of the MTO.

117Mr. Keene advised the MTO was consulted throughout the pre-application and technical review processes. No road widening was required by the MTO, nor was it ever recommended by the City. As such, in his opinion, there is no requirement to provide a road widening along this section of Bath Road.

118Counsel for the Applicant Ms. Melinz submits that a condition requiring approval of MTO as part of the variance approval process is not appropriate and it creates a condition clearance issue. MTO approval is required as part of the building permit process which is a separate process. MTO approval requires detailed designs as part of the building permit process which requires confirmation of the building envelope as established by the variance. In her opinion, an approval authority will not approve a detailed design for a hypothetical building envelope.

119Ms. Melinz advised that a condition requiring MTO approval is not appropriate because it is not relevant to the minor variance currently before the Tribunal, as both the proposed septic system and driveway location are outside of the required floodplain setback and could be constructed as-of-right pursuant to the applicable ZBL.

FINDINGS

120The Tribunal has carefully considered all of the evidence including documents filed as well as the submissions of the parties, articulated by both sides. The Tribunal is satisfied based on the evidence of the Applicant’s expert witnesses Michael Keene, James Bar and Martin Burger that the four tests under section 45(1) of the Planning Act ("Act") have been met by this application and therefore the appeal is dismissed. The details and reasons are set forth below.

121Mr. Clark raised numerous issues and it is his opinion that the granting of the minor variance for the reduced setback from the floodplain may be defensible, but it does not address a number of other applicable zoning provisions, and therefore the proposed development cannot be considered appropriate for the Subject Property as outlined in section 45(1) of the Act which sets out the basis for the approval of a minor variance.

122Mr. Clark opined, based on these policies the tests established in the Act and the OP are not met and that the minor variance is not sufficient to permit the development of the Subject Property, as the tests outlined in section 51(24) of the Act are not met and the proposed development does not conform to the OP or the ZBL.

123In determining this matter, the Tribunal prefers and adopts the land use planning evidence and expert opinions provided by the City and Applicant’s planners. Mr. Bar, who approved the report to the Committee recommending approval of the variances, concurred with the entirety of Mr. Keene’s and Mr. Burger’s oral evidence as well as the content of both Mr. Keene’s and Mr. Burger’s witness statement. The Tribunal is persuaded by their evidence that the proposal promotes good land use planning, satisfies the four tests in section 45(1) of the Act; is consistent with the PPS; and meets the general intent and purpose of the OP and ZBL.

124The Tribunal finds the requested variance maintains the general intent and purpose of the OP in that it is in keeping with the nature of development in the surrounding area and will not result in any adverse effects; the variance maintains the general intent and purpose of the ZBL in that the intent of the flood plain setback sought to be varied will be maintained; the variance is minor in nature as they will not have a negative impact on the surrounding area; and the variance is desirable for the appropriate development of the lands in question as it represents the efficient use of an existing parcel within the urban boundary.

125The Tribunal was not persuaded by and does not accept all of the land use opinion evidence of Mr. Clark. Although Mr. Clark was forthright in his testimony, in the Tribunal’s opinion, he did not provide conclusive evidence for the Tribunal to allow the appeal and dismiss the minor variance application individually or cumulatively in particular in the area of general intent and purpose of the OP and ZBL, consistency with the PPS nor the four tests in section 45(1) of the Act.

126The Tribunal also acknowledge Ms. Eagan’s forthright testimony. Despite her reasoning of her opinion which was matter of fact, the issue before the Tribunal is a minor variance application to reduce the minimum setback from the flood plain. However, the Tribunal finds it necessary to comment on the issue of the septic system.

127Even though Ms. Eagan has testified from her extensive experience that placing a private septic system is "maxed out" in the location and placing it underneath a driveway is in her opinion, not a best practice and not recommended by her, there is evidence by Mr. Burger that although he agrees that a leaching bed fill or mantle under an impermeable asphalt, concrete, or unit paver paving system is not recommended in practice, this is why he requested approval from Enviro-STEP Technologies, that this system can be placed underneath the driveway and not be inhibited using the geogrid reinforced permeable paver system.

128In addition, whether Enviro-STEP Technologies can authorize or approve the placement in which Ms. Eagan’s opinion they cannot, and BMEC has specific terms and conditions, the Tribunal reconciles the fact that Enviro-STEP Technologies, engineer for the Eljen system, is approving the location of the system underneath the driveway at this time.

129Therefore, the Tribunal is not persuaded to intervene at this stage for a minor variance application since as noted the planning approval does not constitute approval to construct the septic system. As noted by Mr. Burger’ testimony, the design will be formally submitted with the building permit application for final review and approval. The building code permit approval is not before the Tribunal and is not within the jurisdiction of the Tribunal. The Tribunal finds the lot is serviced with existing municipal water. This meets the requirements for zoning and minor variance approval.

130Ms. Islam’s testimony presented multiple concerns and a due process argument that was based solely on apprehension including several outside of the jurisdiction of the Tribunal. It is not sufficient to merely raise an apprehension, the Tribunal is grounded on determining facts and that mere apprehension or concern about a matter without any substantiation is not evidence. Objections must be based on planning principles. As Member Denhez noted in the 2015 OMB decision "the other stated concerns raised by the neighbour were understandable, but manageable" (paragraph 39 of Islam v. Kingston (City), 2015 CarswellOnt 18233). The Tribunal finds the Appellant’s concerns can be managed at the building permit stage.

131The Tribunal is persuaded that the proposed development is feasible in this lot. The Applicant’s experts have all testified that the proposal is desirable for the appropriate development or use of this property subject to further building code policies. As noted in Darling v. Brockville (City) Committee of Adjustment, 1994 CarswellOnt 5647, concerning an undersized lot, "the Applicant’s lot and building are not, perhaps, a perfect fit for this neighbourhood. They are, however, the best fit available…".

132Regard has been given to the decision of the Committee and the information considered by it in the course of making its decision. Upon the evidence of the Participant’s, the Tribunal is satisfied that the concerns raised by the neighbours and adjacent property owners were given appropriate consideration and that the variance will not result in undue adverse impacts to the property owners or to the area in general. All of the Applicant’s expert’s have testified that drainage plans, and other building plans will be completed and only issued once it’s in compliance with the OBC and approval from the City and outside agencies at the building permit stage.

133Finally, the Tribunal found it is unnecessary to opine or intervene on the due process argument concerning the CoA decision nor the 2006 or 2015 OMB decisions. This is a hearing de novo and although regard has been given to the CoA decision, the process of that decision along with the different facts and circumstances concerning the previous OMB hearings is unnecessary to comment on. The issue before the Tribunal is whether the four tests under section 45(1) of the Act have been met by this minor variance application, which the Tribunal finds it has.

ADDITIONAL CONDITIONS

134The Tribunal is alive to the fact that under the Act section 45(9.1) states the committee may require an owner to enter into an agreement with the municipality as a condition. However, as noted by the Applicant, the legislation does not extend to include an adjacent owner as a party to the agreement.

135Counsel for the Appellant recommends an additional condition would note that the minor variance is conditional upon the approval of the MTO in any and all aspects associated with the proposed private septic system in the front yard.

136The Tribunal agrees with the Applicant’s counsel, an appeal to a minor variance should not be used to create additional rights for an Appellant that are not otherwise available through other established processes. Accordingly, the Applicant cannot agree to an additional condition(s) that necessitates the involvement of the Appellant in the building permit process.

137Even though the Applicant is open to an inclusion of an additional condition, that is acceptable to the City, that requires the owner to enter into a maintenance and/or monitoring agreement in regard to the septic system. The fact the CoA did not make this a condition along with the testimony of the Applicant’s experts, with the technical reports submitted as part of the minor variance application and continued discussions after the CoA decision, and the fact there are already established reviews and processes in place for the application, satisfies the Tribunal that the requested condition is not required and there is no evidence to suggest the City, outside agencies including the MTO and Applicant will not continue to communicate throughout the minor variance application and presumably throughout the building permit stages. Since there is currently no septic system in place the Tribunal will not intervene and will allow the City’s and the Applicant’s discretion on whether to enter into a maintenance and/or monitoring agreement at such time as they deem fit.

138In regard to the conditional approval from MTO associated with the proposed private septic system the Tribunal is not persuaded to intervene. The Tribunal has comfort in knowing the completeness of the information in the Planning Report provided has been reviewed in detail through the technical review process, and all commenting departments and external agencies have noted that no additional information is required for the minor variance application including no concerns from the MTO. The Subject Site’s conditions (see Attachment 2) have been found to be suitable for the installation of the private septic system, subject to all building permit requirements which is already contained in conditions two (2) No Adverse Impacts and three (3) Building Permit Application Requirements, from the CoA decision.

ORDER

139The Tribunal orders that the appeal is dismissed.

"Eric S. Crowe"

eric s. crowe

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.

ATTACHMENT 1

ATTACHMENT 2

CONDITIONS

1. Limitation

That the approved minor variance applies only to the subject lands located at 4336 Bath Road for the proposed 2 storey single family dwelling as shown on the approved drawings attached to the notice of decision.

2. No Adverse Impacts

The owner/applicant shall demonstrate to the satisfaction of the City that there are no adverse impacts on neighboring properties as a result of any modifications to on-site grading or drainage.

3. Building Permit Application Requirements

The owner/applicant shall provide to the Building Services a copy of the decision of the Committee of Adjustment, together with a copy of the approved drawings, when they make application for a Building Permit. The drawings submitted with the Building Permit application must, in the opinion of the City, conform to the general intent and description of the approved drawing(s), including any amendments and conditions approved by the Committee of Adjustment, as stated in the decision. It must be noted that additional planning approvals may be required should further zoning deficiencies be identified through the Building Permit application process.

4. Standard Archaeological Condition

In the event that deeply buried or previously undiscovered archaeological deposits are discovered in the course of development or site alteration, all work must immediately cease and the site must be secured. The Cultural Program Branch of the Ministry of Tourism, Culture and Sport (416-314-7132) and the City of Kingston’s Planning Services (613-546-4291, extension 3180) must be immediately contacted. In the event that human remains are encountered, all work must immediately cease and the site must be secured. The Kingston Police (613-549-4660), the Registrar of Cemeteries Regulation Section of the Ontario Ministry of Consumer Business Services (416-326-8404), the Cultural Program Branch of the Ministry of Tourism, Culture and Sport (416-314-7132), and the City of Kingston’s Planning Services (613-546-4291, extension 3180) must be immediately contacted.

ATTACHMENT 3