Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 23, 2023
CASE NO(S).: OLT-23-000600
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Neil and Holly DeBacker
Subject: Minor Variance
Description: MV to facilitate creation of single unit detached dwelling
Reference Number: A-08-23
Property Address: 5 Desert Springs Crescent
Municipality/UT: Leamington/Essex
OLT Case No: OLT-23-000600
OLT Case Name: DeBacker v. Leamington (Municipality)
Heard: November 07, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Neil DeBacker and Holly DeBacker
Self Represented*
Municipality of Leamington
Jameson Pritiko
DECISION delivered BY STEVEN T. MASTORAS ON november 07, 2023 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal relates to an appeal pursuant to s. 45(12) of the Planning Act (“Act”) from the refusal of the Committee of Adjustment (“COA”) in the Municipality of Leamington (“Municipality”) with respect to an application for a Minor Variance. The appeal has been filed by Neil DeBacker and Holly DeBacker (together the “Applicants” / “Appellants”) regarding the property located at 5 Desert Springs Crescent (“Subject Property”).
2The purpose of the minor variance application (“Application”) is to facilitate the proposed construction of a new single unit detached dwelling and accessory building. The Application is seeking relief from Section 8.1.3 of the Residential Zone (R3) regulations of Zoning By-law No. 890-09 (“ZBL”), as amended, to increase the maximum permitted lot coverage from 35 percent (“%”) to 39.05% to allow the construction of the dwelling and includes the shed/accessory building.
3The Tribunal was in receipt of several submissions and has marked the following as Exhibits:
Exhibit 1 - Notice of Hearing issued by the Tribunal on August 1, 2023;
Exhibit 2 - The Appellants’ updated submissions dated October 6, 2023 and October 13, 2023 with architectural plans and photographs;
Exhibit 3 – Curriculum Vitae and Sworn Acknowledgement of Experts Duty Form from Les Therrien (Architectural Technologist);
Exhibit 4 - Document Brief, Book of Authorities and Sworn Acknowledgement of Experts Duty Form from Michael Nelson dated October 30, 2023;
Exhibit 5 - Witness Affidavit from Michael Nelson dated October 27, 2023;
Exhibit 6 - Municipal Record.
4There were no other requests for Party or Participant Status.
LEGISLATIVE FRAMEWORK
5As this is a Hearing de novo, s. 45(1) of the Planning Act establishes the “four tests” that must be satisfied. In other words, to authorize the variance, the Tribunal, in an appeal, must be satisfied that the variance:
a. maintains the general intent and purpose of the Official Plan;
b. maintains the general intent and purpose of the Zoning By-law;
c. is desirable for the appropriate development or use of the land, building or structure; and,
d. is minor in nature.
6In addition, s. 3(5) of the Act requires that the Tribunal's Decision must be consistent with policy statements and Provincial plans, including the Provincial Policy Statement 2020 (“PPS”). The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as for the decision of the COA and the information considered in the course of making its Decision, as set out in section 2.1(1) of the Act.
HEARING EVIDENCE
Appellants Evidence
7The Parties agreed to proceed with testimony from a total of one witness each. The Appellants are self-represented and commenced the proceeding with only Mr. DeBacker’s testimony as a layperson in relation to land use planning issues.
8The Appellant provided a brief history of the Application and asserted that the plans for the new home met all other ZBL conditions and setback requirements and the only variance requested is the lot coverage request.
9The Appellant provided further background information to the effect that if the porch coverings and shed were removed from the rendering, their design would have met the 35% lot coverage requirement, and that the Appellants were still desirous of keeping these coverings and shed in the plan. He also asserted that the need for the variance was primarily attributable to the irregular pie-shaped lot impact on the final design and that they endeavored to meet all conditions of the ZBL and requirements of the Act.
Appellant’s Witness
10Mr. Les Therrien, an Accredited Architectural Technologist, was introduced and acknowledged by the Tribunal as the Registered Designer, and creator of the proposed site drawings and design by Gadfly Modern for the Subject Property. Counsel for the Municipality did not object to this with the condition that only architectural matters would be the subject of Mr. Therrien’s testimony.
11Mr. Therrien asserted that great care has been taken to ensure all proposed building structures comply with setback requirements, and that the 35% standard lot coverage established as part of the Golf Wood Lakes subdivision plan, was used as his guideline for the Subject Property. He asserted that the proposed dwelling with 1.5 storeys, was well within all other conditions of the ZBL, and that the variance respecting lot coverage was reasonable from an architectural design perspective allowing for an attractive home that was unobstructive.
12He further testified that the proposal features a three (3) bedroom dwelling with three garage bays, two of which are in tandem allowing additional space for indoor storage, a workshop or a possible boat storage location at a total length of 36 feet. The design plan also includes two covered porches and separate shed/accessory structure, properly designed to fit within municipal setback requirements resulting in this single variance request allowing a lot coverage of 39.05%.
13In closing submissions, the Appellant attempted to address the statutory framework as referenced previously in paragraph [5]. The Tribunal indulged this testimony with its limited analytical value but understood that the self-represented Appellant did his best to address the fundamental variance request noting that this testimony could not be relied upon as expert land use planning evidence.
Municipality’s Evidence
14Michael Nelson, a Planner with the Municipality, was qualified by the Tribunal to provide expert opinion evidence on land use planning matters concerning the Appeal.
15Through his Affidavit and oral testimony, and regarding the “four tests”, Mr. Nelson opines that:
Maintains the general intent and purpose of the Official Plan;
His Planning Justification Report (“PJR”) submitted to the COA on May 31, 2023 and his Affidavit were consistent, and that the Municipality did not receive any concerns or objections to the proposed minor variance from any persons within the notice area, the Essex Region Conservation Authority, the Municipality's Building Services, Engineering Services or Water Services departments respectively;
In both the PJR and Affidavit, the Application was consistent with the PPS 2020, and the County of Essex Official Plan 2013 (“COP”). Despite this, he opines that none of the applicable “four tests” pursuant to the Act were met at the COA, and through his testimony he maintains the same view.
The Subject Property is located within Phase 2 of the Golfwood Lakes Subdivision. The surrounding land uses are residential. The area is serviced by municipal water, municipal sewers and municipal storm systems. Many of the lots in the vicinity are currently vacant with several new single unit detached dwellings being constructed.
While the Subject Site conforms to the COP as approved in 2013, it does not conform to the Leamington Official Plan (“LOP”) which was approved in 2008. In response to questions from the Tribunal, he opined that the LOP is outdated, requires further review from the Municipality, and did not dispute that the LOP (Lower tier), must be consistent with the PPS 2020 and must conform with the COP 2013 (Upper tier). He also asserted that although this discrepancy exists, he maintains the opinion that the variance does not meet the general intent and purpose of the LOP 2008 as it “does not represent orderly development and does not take into account the considerations of the lot provisions as outlined for the remainder of the development.”
Maintains the general intent and purpose of the Zoning By-law (“ZBL”);
The ZBL specifies the lot coverage requirement of 35% and he opines that the Subject Property does not meet the ZBL. Notwithstanding that some neighbouring developments may have higher lot coverage in the range of 40%, he asserts that the ZBL seeks uniformity, consistency in design and requires that a proposal must meet the character of the area, which in this instance, still has numerous vacant lots yet to be constructed.
The cumulative massing of the proposed buildings on the lot will have an impact on adjacent and surrounding lots in the subdivision. He therefore concludes the general intent and purpose of the ZBL is also not maintained.
Is desirable for the appropriate development or use of the land, building or structure.
The size and scale of the proposed built form is not desirable and it represents an overdevelopment of the Subject Property.
The significantly larger mass of buildings, when compared with the surrounding neighbourhood, results in overcrowding.
The Appellants have not provided supporting justification for why they cannot comply with the lot coverage ZBL provisions, and “they knew when they purchased the lot that it was irregular in shape,” and is not considered to be desirable for the appropriate development of the Subject Property.
Is minor in nature.
The design is out of character and while the lot coverage variance may not impact the normal use and enjoyment of the Golfwood Lakes Subdivision, it will impact the overall built form of the Subject Property.
The size and scale of the building is therefore, not minor in nature.
ANALYSIS AND DISPOSITION
16During cross examination, Mr. Nelson confirmed that covered porches and accessory buildings did count towards lot coverage. He stated that the designs, as presented, made evident a lot coverage of just over 39% and opines that the home could be redesigned to meet the 35% requirement. He also stated that as the Phase 2 Golfwood Lakes approval is presently advancing to new dwelling design and permit applications with numerous vacant lots, there are some other COA applications in process and another matter is also proceeding to the Tribunal. He did not express any concern that this lot coverage variance request would somehow set an adverse precedent for the area.
17Notwithstanding this, he opines that the Application does not meet the “four tests” pursuant to the Act beginning with the LOP 2008 as his foundational argument based on an outdated document, and in the opinion of the Tribunal, he minimizes the importance of the PPS 2020 and the COP 2013 in his very brief reference in written and oral testimony. The Tribunal does not concur with his interpretation.
18The impact of elevating the outdated LOP 2008 to a level that bears a greater degree of relevance, than the more current COP 2013 and PPS 2020 as it relates to this lot coverage issue, in the opinion of the Tribunal, does not appear to conform to or be consistent with each guideline respectively. The Tribunal finds that using this outdated LOP 2008 as the basis for its position, impacts negatively on the application and other “tests” by its nature. Therefore, the Tribunal finds that the appeal is consistent with the PPS 2020, maintains the general intent and purpose of the COP 2013, and based on the evidence, conforms with the LOP 2008, pursuant to the first “test” in s.45(1) of the Act.
19Regarding the ZBL, which according to Mr. Nelson, “delineates areas and encourages the promotion of public welfare and promotes orderly development, while protecting land uses from adverse impacts on other neighbouring uses and implements Official Plan policies”, the Tribunal is satisfied that the Appellants understand this. In fact, Mr. Therrien emphasized that he carefully considered neighbouring impact in his design and met all other requirements of the ZBL except for lot coverage. Based on the careful review of drawings, the Tribunal finds that it agrees with this assertion and that the architectural impact of the Appellants’ plans do not adversely impact neighbouring properties with “cumulative massing”, but instead the design promotes safe and orderly development. Therefore, the Tribunal finds that the appeal maintains the general intent and purpose of the ZBL.
20This view also applies to the third “test” in that the desirability and the appropriate development or use of the land, building or structure. The dwelling is clearly a detached single-family unit on an irregular shaped lot, consisting of 1.5 floors, with three bedrooms and three garage bays, two of which are tandem by design. The design does not represent an inappropriate development of the land, and the efforts of the Appellants should be recognized for endeavoring to ensure that reasonable efforts have been made in their attempt to achieve a very high standard of design and future construction.
21Finally, the plan for the Subject Property meets the last “test” of being minor in nature, in that a variance allowing lot coverage to increase from 35% to 39.05%, essentially for two covered porches, and a shed/accessory storage building does not adversely affect the character of the area, much of which has yet to be built out.
22Therefore, the Tribunal finds that the appeal shall be allowed and the variance to By-law No. 890-09 shall be authorized.
ORDER
23THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 890-09 is authorized.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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.