Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 07, 2022
CASE NO(S).: OLT-21-001167
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Cooper Taugher and Brittney Taugher
Subject: Minor Variance
Property Address/Description: 550 Concession 10 East, Flamborough
Municipality: City of Hamilton
Municipal File No.: FL/A-21:140
OLT Case No.: OLT-21-001167
OLT Lead Case No.: OLT-21-001167
OLT Case Name: Taugher v. Hamilton (City)
Heard: January 27, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Cooper and Brittney Taugher
Derek Schmuck
City of Hamilton
Aisling Flarity
DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL
1Cooper and Britney Taugher (“Applicants”) appealed the decision of the Committee of Adjustment (“CoA”) for the City of Hamilton (“City”) refusing an application for minor variance from Zoning By-law No. 05-200 (“ZBL”) affecting 550 10th Concession Road East, Flamborough (“site”).
2Prior to the hearing, the Parties arrived at a settlement, primarily owing to a corrected reduction in one of the required variances. The Parties requested that the Tribunal authorize the sought amended variances.
3The Applicants had applied for variances to permit an accessory building in the front yard, and of a size that exceeds the lot coverage limit:
to permit an accessory building in the front yard, whereas ZBL s. 4.8.2(a) prohibits accessory buildings in a front yard; and
to permit an accessory building with a gross floor area of 342 square metres (“sq m”), whereas ZBL s. 4.8.2(c) limits size to 5% lot coverage to a maximum gross floor area of 200 sq m.
4The Parties requested that the second variance now seeks to permit a gross floor area of 297.5 sq m. The Parties advised that the original building size calculation included a canopy attached to the building, which does not constitute floor area, such that the variance sought is for a smaller building size.
5Pursuant to s. 45(18.1) and (18.1.1) of the Planning Act (“Act”), the Tribunal finds that it may make a Decision on this amended application without further notice because the amendment is considered minor. The requested variance to building size is now below what was originally sought and circulated, and there has been no change to the proposed building itself.
6The Municipal Record, marked as Exhibit 1, contains the City’s planning report (“report”) which supported the front yard variance, but did not support the lot coverage variance. The report advised that the application seeks a use that complies with this site’s Rural designation in the Rural Hamilton Official Plan (“OP”) and that the use of an accessory structure is permitted in the A2 zone in the ZBL. The report recommended a “caution” clause, should the variances be approved, regarding the site’s archaeological potential and notification obligations should materials or remains be discovered during construction activities. On cultural heritage matters, the report concluded that no issues arise related to a nearby heritage dwelling.
7In support of the front yard variance, City staff noted that the site is a large, rural, flag-shaped lot, adjacent to similar lots and uses as well as agricultural operations, some with accessory buildings in the front yard. If located to the rear of the dwelling on this site, the accessory building would necessitate the removal of trees within a significant natural feature. Staff concluded that this variance to front yard provisions results in no impacts on the character and streetscape of the area.
8To the lot coverage variance, as originally calculated, staff considered the building size to not be subordinate to the primary dwelling and thus ceased to be an accessory structure. The variance was not supported based on not being found minor or appropriate for the site.
9Neither Party intended to call planning evidence in support of the revised variances, and requested that the Tribunal authorize the variances based on the settlement discussions. Ms. Flarity asked the Tribunal to proceed with a Decision, but should further planning evidence be required, that the Applicants provide such report. Mr. Schmuck responded that further planning evidence was unnecessary given the facts of this application and the contents of Exhibit 1, and that the Applicants should be spared additional cost given the straight forward nature of this application, including the consent of the City.
10The Tribunal noted that this is a hearing de novo and it must render a Decision on the amended application based on the evidence and with reference to the numerous requirements of the Act. The Tribunal is prepared to proceed given the uncomplicated nature of this application, the planning report in Exhibit 1, and in particular, the helpful evidence of Mr. Taugher (first name not given) whom the Tribunal called as a witness.
11In response to the Tribunal’s questions, Mr. Taugher explained as follows. He is a direct relative and representative of the Applicants, and as former part owner of the site, he is fully familiar with the area and this application. The request is to expand the existing shed, located in the front yard by permission of a previous minor variance, with a garage area for cars. The site cannot accommodate the accessory building behind the house, given the dwelling’s location at the rear of the site, the treed conservation area there, and the active railway behind. The building will not be visible from the road and is buffered from adjacent properties by existing trees, to be supplemented by further plantings. Surrounding properties contain a variety of building sizes, and those lots tend to be smaller than this site. This site is 3.42 acres, most of which Mr. Taugher believes is within the A2 zone, given that the conservation lands are only on the easterly side, being the rear of the site.
12The Tribunal finds that the amended application satisfies all relevant tests under the Act. The City’s planning report identifies no issues with: the provincial interests of s. 2; consistency with the Provincial Policy Statement, 2020; and conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020. The report concludes that the front yard variance maintains the purpose and intent of the OP and ZBL, is desirable for the development of the lands, and is minor.
13To the amended building size, for which limited direct planning evidence is available, the Tribunal finds that it too meets the four tests for a variance under s. 45(1) of the Act. Based on the report, an accessory building is permitted on this site by both the OP and ZBL. The City now supports the revised variance based on it representing a smaller deviation from the size limit in the ZBL. On the clear and helpful evidence of Mr. Taugher, the Tribunal finds the proposed accessory building to represent a very small percentage of the site area, to be largely screened and separated from adjacent properties, and to constitute an acceptable increase to the permitted floor area of 200 sq m, given this rural location. As such, the Tribunal finds that this variance would not offend the intent of the OP and ZBL, is desirable for the appropriate development and use of this site, and is minor.
14In arriving at this Decision, the Tribunal has had regard for the decision of the CoA and the information it had available.
ORDER
15The Tribunal Orders that:
the appeal is allowed in part;
the amended variances are authorized to permit an accessory building not exceeding 297.5 square metres in the front yard; and
subject to the Archaeology Caution contained in Exhibit 1, City staff report, pages 2 and 3.
“S. Tousaw”
S. tousaw
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.