Morgan v. Burlington (City), 2023 CanLII 103231

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 30, 2023

CASE NO(S).: OLT-23-000294

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

Applicant and Appellant: Nigel Morgan

Subject: Minor Variance

Description: to facilitate the construction of a new two-storey dwelling

Reference Number: 540-02-A-086-2022

Property Address: 871 Glenwood Ave

Municipality/UT: City of Burlington

OLT Case No.: OLT-23-000294

OLT Lead Case No.: OLT-23-000294

OLT Case Name: Morgan v. Burlington (City)

Heard: September 25, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Nigel Morgan

D. Baker

City of Burlington

B. Hurley

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON SEPTEMBER 25, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Nigel Morgan (“Applicant”/ “Appellant”) against the decision of the City of Burlington (“City”) Committee of Adjustment (“COA”) to deny a Minor Variance (“MV”) application for the property municipally known as 871 Glenwood Avenue (“subject property” / “Site”).

2The subject property is a rectangular interior lot located on the northern side of Glenwood Avenue, between Townsend Avenue and North Shore Boulevard East in the Aldershot area of the City. It is legally described as Lots 110 and 111, Registered Plan 732 (PF).

3The Site has approximately 30.5 metres (“m”) of street frontage on Glenwood Avenue, a depth of 77.9 m and an approximate area of 0.586 acres (0.237 hectares). The subject property is currently vacant. The southern (front) portion of the Site is relatively flat, and the northern (rear) portion includes a heavily treed ravine.

4The subject property is surrounded by single detached lots with driveways, including eight circular driveways. The dwellings on surrounding properties vary in architectural design through colours, materials, and roof design, that are either one or two storeys in height, and are comprised of homes without a garage, or with one, two and three garages.

PRELIMINARY MATTER

5Prior to the Hearing, the Tribunal received a communication from the City stating that the City will not be calling any expert witnesses at the Hearing, but will be making submissions in support of the amended variances being sought by the Appellant.

6Pursuant to s. 45(18.1) and (18.1.1) of the Planning Act (“Act”), the Tribunal has the discretion to allow amendments to a MV application without the requirement for further public notice, if it is of the opinion that such amendments are minor.

STATUS REQUESTS

7In advance of the Hearing, the Tribunal received a Participant Statement from Tony Louzado, Simone Banz, Daniel and Margaret Giroux, and Party Status Request from Edward and Jeanette Younglai.

8The Tribunal questioned whether Mr. and Ms. Younglai are intending to call any expert witnesses to testify at the Hearing. Mr. Younglai stated that they will not have any expert witnesses at the Hearing.

9The Tribunal expects a Party in a Hearing to fully engage in the Hearing process – more specifically, to support the issues raised by them with expert planning or technical evidence. Given that Mr. and Ms. Younglai were not calling any witnesses or proffering expert evidence, the request for Party Status was denied. Instead, the Tribunal granted Mr. and Ms. Younglai Participant Status, and will consider the issues and concerns raised by them and by Mr. and Ms. Giroux, Ms. Banz and Mr. Lozado when making a decision.

THE DEVELOPMENT PROPOSAL

10The Appellant is proposing to construct a new two-storey dwelling, with a circular driveway for pedestrian and vehicular access to two attached garages on either side of the building, the front primary entrance to the dwelling and a pool in the rear yard.

11The Applicant requested the following variances in the original application:

To permit a front yard setback of 9.7 m, whereas 11 m is the minimum required for a proposed two-storey dwelling with attached garage;
To permit a front yard setback of 8.5 m, whereas a minimum setback of 10.35 m is required (11 m – 0.65 m encroachment) for a proposed roofed over a one-storey porch including steps and roof overhang excluding eaves and gutters;
To permit an east side yard encroachment of 1 m, whereas a maximum projection of 0.5 m measured from the wall of the building for a proposed roof overhang excluding eaves and gutters is permitted;
To permit a west side yard encroachment of 1 m, whereas the maximum permitted projection is 0.5 m measured from the wall of the building for a proposed roof overhang excluding eaves and gutters;
To permit the westerly proposed attached garage to project 1 m beyond the longest portion of a wall facing a street, whereas Zoning By-law No. 2020 (“ZBL”) does not permit an attached garage with a garage door facing a street to project beyond the longest portion of a wall facing a street and containing residential floor area on the first storey of a dwelling;
To permit the easterly proposed attached garage to project 1 m beyond the longest portion of a wall facing a street, whereas the ZBL does not permit an attached garage with a garage door facing a street to project beyond the longest portion of a wall facing a street and containing residential floor area on the first storey of a dwelling;
To permit a dwelling depth of 22.9 m, whereas 18 m is the maximum permitted measured from the building wall closest to the front lot line to the building wall closest to the rear lot line for a proposed two-storey dwelling with an attached garage;
To permit the width of a front loading attached garage to be 12.2 m (51.2%) of the total width of its building elevation, whereas 11.88 m (50%) is the maximum permitted for a proposed two-storey dwelling with an attached garage;
To permit the combined width of the two points of access to be 12 m, whereas 9 m is the maximum permitted for a proposed circular driveway;
To permit the widest point beyond a circular driveway to be 12 m total, whereas 9 m is the maximum permitted for a proposed circular driveway; and
To permit a west side yard setback of 1.3 m, whereas 1.5 m is the minimum permitted for the proposed inground pool.

12The Staff Report, including comments from the City’s Planner, indicated there was “no objection to the proposed minor variances with the exception of 6 and 7.”

13Despite the Staff Report, the COA granted only MVs 1, 2, 3 and 4.

14Following the discussions between the Appellant, the City’s Planner and Zoning Examiner, the Parties reached an agreement with the following changes to three MVs:

Minor Variance

Settlement Changes

Revised Wording

To permit the westerly proposed attached garage to project 1 m beyond the longest portion of a wall facing a street whereas ZBL does not permit an attached garage with a garage door facing a street to project beyond the longest portion of a wall facing a street and containing residential floor area on the first storey of a dwelling.

Decreased the garage projection by 0.5 m.

To permit the westerly proposed attached garage to project 0.5 m beyond the longest portion of a wall facing a street whereas ZBL does not permit an attached garage with a garage door facing a street to project beyond the longest portion of a wall facing a street and containing residential floor area on the first storey of a dwelling.

To permit the easterly proposed attached garage to project 1m beyond the longest portion of a wall facing a street whereas ZBL does not permit an attached garage with a garage door facing a street to project beyond the longest portion of a wall facing a street and containing residential floor area on the first storey of a dwelling.

Decreased the garage projection by 0.5 m.

To permit the easterly proposed attached garage to project 0.5 m beyond the longest portion of a wall facing a street whereas ZBL does not permit an attached garage with a garage door facing a street to project beyond the longest portion of a wall facing a street and containing residential floor area on the first storey of a dwelling.

To permit a dwelling depth of 22.9 m instead of the maximum permitted 18 m measured from building wall closest to front lot line to the building wall closest to the rear lot line for a proposed two-storey dwelling with attached garage.

Decreased the garage projection by 0.5 m which decreased the dwelling depth.

To permit a dwelling depth of 22.4 m instead of the maximum permitted 18 m measured from building wall closest to front lot line to the building wall closest to the rear lot line for a proposed two-storey dwelling with attached garage.

15Those amendments were acceptable to City Council and have resulted in support of a settlement from a planning perspective.

LEGISLATIVE FRAMEWORK

16An appeal pursuant to s. 45 of the Act is a Hearing de novo, and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) of the Act has been satisfied:

The intent and purpose of the Official Plan (“OP”) is being maintained;
The intent and purpose of the ZBL is being maintained;
Is desirable for the appropriate development or use of the land, building or structure; and
Is minor in nature.

17In addition to the four tests, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act, and the decision of the approval authority under s. 2.1 of the Act.

HEARING

18Sarah Knoll, a Registered Professional Planner, appeared on the behalf of the Appellant and was qualified by the Tribunal to provide land use planning opinion evidence in relation to the matter under appeal.

19Ms. Knoll provided her opinion evidence relative to the Planning instruments applicable to the subject property. She brought to the Tribunal’s attention that the Conservation Authority indicated it had no objection to the application, subject to obtaining a permit from Conservation Halton.

20It is Ms. Knoll’s opinion that the proposed development has sufficient regard for matters of provincial interest as set out in s. 2 of the Act, pertaining to the application.

21The Tribunal finds that the proposed development has regard for matters of provincial interest.

22Ms. Knoll addressed the four tests as set out in s. 45(1) of the Act relative to the different groupings of the requested MV.

23Ms. Knoll pointed out that the agreement reached between the Applicant and the City has resulted in the reduction of the garage projections from 1 m to 0.5 m. The subject property is designated ‘Residential – Low Density’ on Schedule “B” – Comprehensive Land Use Plan – Urban Planning Areas. It is her opinion that the proposed use is permitted within the OP.

24Ms. Knoll reviewed Part III of Policies 2.5.2(xi) and 2.5.2(v) of the OP and opined that building the dwelling and porch/steps closer to the street frontage will provide an appropriate development setback to the top of bank. She provided that the reduced front yard setback is generally in the location of the demolished dwelling. The garage locations on either front end of the dwelling, with the single garage on the western side of the front façade and the double car garage on the eastern side of the front façade, will provide variation in the front elevation, and breaks up the typical single detached dwelling design with combined garages. She is of the opinion that the garage projection is in line with architectural features across the front façade that aid in minimizing the projection.

25Ms. Knoll summarized that the requested variances maintain the general intent and purpose of the OP.

26Ms. Knoll explained that the purpose of the front yard setback is to allow for appropriate design considerations, and that the proposed development will continue to maintain the purpose and intent of the regulation, as the Development Engineering and Transportation Planning (“DETP”) indicated no objection to the variances requested, and a reduction to landscape requirements is not required.

27She brought to the Tribunal’s attention Tab 22 of the Exhibit 1, highlighting lots that have less than an 11 m setback along Glenwood Avenue. Several properties (844, 847 and 853 Glenwood Avenue) have had MVs approved for a front yard setback and a front yard setback to the proposed porch/steps, ranging from 7 m to 5.9 m respectively. For the proposed development, a significant front yard setback from the street will be maintained at 10.2 m to the garage and 8.5 m to the steps of the porch.

28Ms. Knoll explained that the garage projection of 0.5 m in front of the principal dwelling wall lines up with the entry overhang that spans from garage to garage.

29It is her opinion that the general intent and purpose of the ZBL will continue to be maintained with the request to include accessory uses at grade.

30Ms. Knoll proffered that the MV will continue to allow for an appropriate relationship with the streetscape and will not negatively impact the surrounding neighbourhood. She concluded that the development proposal will be positioned in the location that relates to the existing dwellings along the street, and as such, is minor in nature.

31Ms. Knoll provided that the required side yard setback is 10% of the lot width, which equates to 3.05 m. The actual side yard setback is 3.2 m.

32MV 3 and 4 are not related to the side yard setback at grade, rather, the relief required relates to the overhang projections on the second storey. The requirement is to have a maximum roof overhang of 0.5 m measured from the wall of the building, excluding eves and gutters. The proposed overhang will measure at a 1 m projection from the wall of the building, located 2.2 m from the side property lines, two storeys above grade.

33Ms. Knoll opined that the proposed use is permitted within the OP and that the side yard variances relating to the overhang and pool setback are comparable to the single detached dwellings on Glenwood Avenue. She stated that the side yard setback variances for the roof overhang do not impede the adjacent lots, as an at grade side yard setback is provided in excess of the zoning regulation. The side yard setback variance for the pool will continue to maintain the purpose and intent of the regulation, as the DETP indicated no objection to the variances requested and the proposed setback continues to provide for sufficient distance from the adjacent lots.

34When it comes to desirability, Ms. Knoll has indicated that the Region of Halton, the City and Halton Conservation Authority were in support of all variances being proposed. She further opined that the projection adds an architectural element to the proposed building and will not have an unacceptable impact to the neighbouring properties.

35It is Ms. Knoll’s opinion that the proposed projection is minor in nature.

36Ms. Knoll proffered that the reached agreement resulted in a 0.5 m reduction of the dwelling depth on either side of the dwelling due to reducing the garage projection by 0.5 m. As a result of the agreement, the variance to dwelling depth on the western portion of the dwelling is no longer required. She provided that the location of the dwelling depth that exceeds the required 18 m pertains to the second storey along the eastern portion of the building.

37Ms. Knoll further proffered that the dwelling depth of the abutting 865 Glenwood Avenue dwelling is 21 m according to the City’s interactive mapping. Thus, these two adjacent dwellings are similar in depth, and as such, the general intent and purpose of the OP is being maintained.

38In Ms. Knoll’s opinion, the intent and purpose of the dwelling length regulation is to limit the massing and overdevelopment of the lot. She noted that the subject property is within a development area that requires a more restrictive lot coverage maximum, set at 25% and Floor Area Ratio (“FAR”) set at 0.45:1. The development proposal complies with both regulations at 18.25% lot coverage and 0.269:1 FAR.

39It is Ms. Knoll’s opinion that permitting the increase in dwelling depth continues to maintain the general intent and purpose of the ZBL, as the increase in depth does not occur across the entirety of the building, it is broken up by design articulation and materials.

40Ms. Knoll analyzed desirability of the variance from a planning and public interest perspective and provided that the MV is desirable and appropriate for the Site.

41Due to the lack of adverse impacts on the surrounding properties, it is Ms. Knoll’s opinion that the variance is minor in nature.

42Ms. Knoll explained that the relief requested in MV 9 and 10 is not tied to the size or location of the connecting portion of driveway between the two access points. A variance for the portion of the driveway that connects the two accesses is not required.

43Ms. Knoll stated that the width of the driveway for the single car garage is 4 m at the front lot line and 4 m measured beyond the connecting portion of the driveways. The width of the driveway for the double car garage is 7.92 m at the same locations, resulting in the combined widths of 11.92 m at the front lot line and the combined widths of 11.92 m.

44Ms. Knoll proffered that the garages are restricted to a maximum of 50% of the building width. One of the MV is seeking approval for the garage to comprise of 51.2% of the building width. By measurement, the combined garage width is 12.16 m, and the remaining house width is 11.61 m. She brought to the Tribunal’s attention that if the house had been constructed to the maximum allowable side yard setbacks, and the additional building elevation width (0.594 m) was allocated to the dwelling façade, a variance would not be required, as the garage would be 49.9% of the building elevation width.

45Ms. Knoll noted that three garages are not an anomaly on the street, though the location of these garages (one on the west side of the dwelling, and two on the east side) is unique to this proposal. The massing of having three garages next to one another is broken up by placing them on either side of the dwelling.

46It is her opinion that by allowing an additional 0.26 m to the width of the garage, it remains compatible with the existing neighbourhood character and maintains the general intent and purpose of the OP.

47Ms. Knoll explained that the intent of the ZBL is to limit the driveway widths to regulate the size of the access points in proportion to the lot frontage, and to allow for appropriate design considerations relating to servicing, grading, and landscaping. The purpose of regulating the garage width is to ensure the garage is not the dominant feature of the front façade.

48Ms. Knoll brought to the Tribunal’s attention that the DETP indicated no objections to the variances requested. Thus, the increase in the maximum permitted garage width and driveway widths continue to maintain the intent and purpose of the ZBL.

49She opined that the requested variances are desirable, as it would allow for direct maneuverability onto the property and into/out of each garage space.

50The proposed variances are minor in nature, as no unacceptable adverse impact will result in its implementation.

RESPONSE TO PARTICIPANT STATEMENTS

51At the conclusion of the Hearing, Ms. Knoll addressed the issues raised by the Participants, some of which contained inaccurate statements. Those responses could be found in the Exhibit 1 on pages 28 – 30.

ANALYSIS AND FINDINGS

52This Hearing was a Hearing de novo of the MV applications. Given that the Appellant and the City resolved their issues, the Tribunal accepts and adopts the uncontroverted land use planning opinion evidence provided by Ms. Knoll.

53The Tribunal finds that the variances have regard for matters of provincial interest, maintain the general intent and purpose of the OP and ZBL with no adverse impacts, and therefore are minor.

CONCLUSION

54Based on a thorough review of the evidence before the Tribunal, including the contents of the City’s Staff Report, the decision of the COA, the position of the City in support of the amended variances being sought by the Appellant, taking into consideration the Participant Statements, and taking into account the professional planning opinion of Ms. Knoll, the Tribunal finds that the requested variances satisfy s. 45(12) of the Act.

ORDER

55The Tribunal, having been asked to consider an application which has been amended from the original application, has determined that no further notice is required in accordance with s. 45(18.1.1) of the Planning Act.

56THE TRIBUNAL ORDERS that the appeal is allowed in part and the variances to By-law No. 2020 are authorized.

“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.