Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 27, 2023
CASE NO(S).: OLT-23-000810
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Keith Turner
Subject: Minor Variance
Description: Proposing the construction of a new single-detached dwelling on the subject lands
Reference Number: A-23/23 – 517 Gate Street
Property Address: 517 Gate Street
Municipality/UT: Niagara-on-the-Lake (Town)
OLT Case No.: OLT-23-000810
OLT Lead Case No.: OLT-23-000810
OLT Case Name: Turner v. Niagara-on-the-Lake (Town)
Heard: November 2, 2023 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| 1939592 Ontario Inc. and K. Turner | P. DeMelo |
| Town of Niagara-on-the-Lake | C. Shedden |
MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON NOVEMBER 2, 2023 AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal is an appeal filed by 1939592 Ontario Inc. (“Appellant”) against the decision of the Town of Niagara-on-the-Lake (“Town”) Committee of Adjustment (“COA”) to deny a Minor Variance (“MV”) Application from provisions of Zoning By-law No. 4316-09 (“ZBL”), concerning 517 Gate Street (“subject property” / “Site”).
2The Town Planning Staff Report recommended the approval of the Application.
3The subject property is located in the Old Town Settlement Area, has dimensions of 20 metres (“m”) (frontage) by 39.9 m (depth), a lot area of 799 square metres (“m²”) and is zoned ‘Established Residential (ER)’, with site specific requirements.
4The Tribunal did not receive any Status Requests for this Hearing.
PRELIMINARY MATTER
5On October 16, 2023, the Tribunal received communication from the Town informing the Tribunal that the Town Council is in support of the MV, as submitted by the Appellant, and that the Town will not be calling any witnesses.
LEGISLATIVE FRAMEWORK
6An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested MV:
a) Maintains the general intent and purpose of the Official Plan (“OP”);
b) Maintains the general intent and purpose of the ZBL;
c) Is desirable for the appropriate development or use of the land, building or structure; and
d) Is minor in nature.
7In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act, and the decision of the approval authority under s. 2.1 of the Act.
THE REQUESTED VARIANCE
8The Applicant is proposing to construct a single detached dwelling (bungalow) on the subject property that is currently vacant. The Appellant is seeking relief to increase the lot coverage from 33% to 40%.
HEARING
9Mary Lou Tanner, a Registered Professional Planner, and a fellow of the Canadian Institute of Planners, appeared on behalf of the Appellant. After a review of Ms. Tanner’s professional qualifications, her Curriculum Vitae and confirmation of her Acknowledgment of Expert Duty, the Tribunal qualified Ms. Tanner to provide expert opinion testimony in the area of land use planning.
10Ms. Tanner proffered that the lot for the proposed development will have the following coverage:
| House Element | Area (m²) | Percentage of Lot Coverage (%) |
|---|---|---|
| House | 240.43 | 30.07 |
| Covered Front Porch | 6.97 | 0.87 |
| Garage | 44.5 | 5.57 |
| Rear Covered Terrace | 24.71 | 3.09 |
| Total | 316.61 | 39.59 |
11Ms. Tanner noted that the subject property is identified as Towns/Villages in Schedule 1 of the Greenbelt Plan. As per Policy 3.4.3.1. of the Greenbelt Plan, Towns/Villages are subject to the Policies of the, A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”) and continue to be governed by OPs and related programs or initiatives, and are not subject to the Policies of this Greenbelt Plan, save and except for polices not relevant regarding the application for MV. She pointed out that the Site is identified as "Delineated Built-up Area" within the Niagara Official Plan (“Niagara OP”) - Schedule "B" - Regional Structure.
12Ms. Tanner brought to the Tribunal’s attention that previous consent and Zoning By-law Amendment (“ZBA”) applications were approved to create the subject property. The site-specific provisions associated with the approved ZBA No. 4316DX-21 were as follows:
a) Minimum Lot Frontage of 19 m instead of "As Existing";
b) Minimum Lot Depth of 39 m instead of "As Existing"; and,
c) Exterior Side Yard Setback of 2.8 m instead of 4.5 m.
d) A detached or attached garage shall be setback a minimum of 1.0 m (3.28 ft) behind the main façade of the dwelling on the main floor, except where a covered front porch is provided, an attached garage may project to the rear of the covered front porch, provided the garage has a minimum front yard setback and exterior side yard setback of 6.0 m (19.69 ft).
e) The door(s) of an attached garage shall not occupy more than 50% of the width of the dwelling façade.
13All other provisions of the ER zone apply as well as the general provisions (parking).
14In Ms. Tanner’s professional planning opinion, the proposed development has regard for matters of provincial interest as listed in s. 2 of the Act, is consistent with the Provincial Policy Statement 2020 (“PPS”), conforms with the Greenbelt Plan and the GP, and meets the four tests of s.45(1) of the Act.
15She brought to the attention of the Tribunal s. 2 (j), (p), (r) of the Act and proffered that the proposed development has regard for matters of provincial interest, as set out in s.2 of the Act.
16It is Ms. Tanner’s opinion, that the development proposal is consistent with the Policies of the PPS, more specifically, Policies 1.1.1 b), 1.1.3.4 and 1.4.3. b).
17Ms. Tanner stated that a GP is the land use plan for the Greater Golden Horseshoe, which includes the Niagara Region and the Town. She opined that the development proposal and the requested MV, conforms to Policies 2.2.2.3 c) and 2.2.2.3 f), which encourages intensification, and directs implementation through updated OP Policies and the ZBL.
18Ms. Tanner addressed the four tests, as set out in s. 45(1) of the Act.
19She proffered that the general intent and purpose of the Town OP is to facilitate the development of low-density residential uses, while ensuring that development is compatible with the surrounding area. It is her opinion that the development proposal and the required variance satisfies this intent, and achieves the urban design Policies of the OP. She is also of the opinion that the general intent and purpose of the Niagara OP is maintained, as the proposed development and the variance implements the intensification Policies of the Niagara OP.
20Ms. Tanner explained that the purpose of the Town's ZBL with respect to the ER zone is to facilitate the development of low-density residential uses such as single-detached dwellings which complement, and are, compatible with the existing characteristics of the neighbourhood. In the opinion of Ms. Tanner, the proposed development and the requested variance maintain the general intent and purpose of the ZBL. She stated that the development proposal will fit harmoniously with the character of the surrounding area, and will not result in negative impacts on surrounding properties or character of the neighborhood.
21Ms. Tanner noted that the habitable portions of the dwelling comply with the maximum lot coverage requirement of 33%. Thus, the requested variance is specifically associated with the covered porch, terrace, and garage for the dwelling. In her view, the porch adds architectural interest to the dwelling at the street, and fits the character of the surrounding neighbourhood, providing weather protection, dwelling access, and active amenity spaces. The garage is consistent with the general design of homes in this area of Niagara-on-the-Lake and provides off-street parking. The covered terrace is not visible from the street and provides outdoor amenity area for the future residents without impacting the neighboring properties. In summary, it is Ms. Tanner’s opinion that the requested variance is desirable for the appropriate development of the Site.
22Ms. Tanner stated that the increase in lot coverage arises primarily from the covered rear porch, which will not be visible from the street and does not create any issues with overlook into the surrounding properties. She brought to the Tribunal’s attention that the additional lot coverage does not give rise to any other variances, as all other required setbacks will be maintained. Ms. Tanner proffered that the covered porch is a defining characteristic of the surrounding neighbourhood and is similar to existing homes on Gate Street. She further proffered that the garage meets the key design elements of the Town's ZBL for size and setback from the main façade of the house. It is her opinion that the garage is appropriately designed in terms of the Town's zoning requirements – which is less than 50% of the frontage of the building and setback from the covered porch.
23Ms. Tanner concluded that the requested variance is minor in nature.
ANALYSIS AND FINDINGS
24The Tribunal is satisfied that the application has regard to the matters of the provincial interests as set out in s. 2 of the Act and meets the criteria of the tests set out in s. 45(1) of the Act. The MV can be implemented without any adverse impact on the neighbouring properties.
CONCLUSION
25In making its Decision, the Tribunal has taken into consideration the Municipal Records, the Town staff Planning Report, and has accepted the uncontested land use planning opinion evidence of Ms. Tanner. Based on the planning evidence presented by Ms. Tanner, the Tribunal finds that the requested variance is desirable for the appropriate development of the subject property, is minor in nature, will not have undue impacts on the surrounding properties, has regard for the matters of provincial interests as set out in s. 2 of the Act and meets all four of the tests under s. 45(1) of the Act.
ORDER
26THE TRIBUNAL ORDERS that the appeal is allowed and the variance to Zoning By-law No. 4316-09 is 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.