Rauh-Wasmund v. Ajax (Town), 2023 CanLII 16806

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 03, 2023

CASE NO(S).:

OLT-22-004572

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

Applicant/Appellant:

Addison Rauh-Wasmund

Subject:

Minor Variance

Description:

To permit a minimum set back from the front lot line for a platform porch and to permit a minimum set back for an ornamental structure

Reference Number:

A1/22

Property Address:

487 Poplar Avenue, Lot 68, Plan 285

Municipality/UT:

Ajax/ Durham

OLT Case No.:

OLT-22-004572

OLT Lead Case No.:

OLT-22-004572

OLT Case Name:

Rauh-Wasmund v. Ajax (Town)

Heard:

January 27, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Addison Rauh-Wasmund

Marc Kemerer

("Applicant/Appellant")

Town of Ajax

Was not represented

("Town")

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND BRYAN W. TUCKEY AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal involves an appeal from a refusal of an application for Minor Variances brought pursuant to s. 45(12) of the Planning Act (the "Act") with respect to a property known municipally as 487 Poplar Avenue, in the Town.

2The Applicant/Appellant sought two variances:

i. A minimum setback from the front lot line of 2.6 metres for a platform (porch) (whereas a setback of 7.62 metres would normally be required); and,

ii. A minimum setback from the front lot line of 4.6 metres for ornamental structures (pilasters) to a principal building (dwelling)(whereas a setback of 7.62 metres would normally be required).

3There were no issues with service of the Notice of a Hearing Event sent administratively by the Tribunal. No other person sought party or participant status.

4No counsel appeared at the hearing on behalf of the Town. Although the matter was not contested, the Tribunal must nevertheless be satisfied that the application satisfies all legislative tests.

EVIDENCE

5The Applicant/Appellant summoned Eric Simpson as an expert witness. He is the Town’s Senior Planner and has knowledge of the application. Mr. Simpson was qualified by the Tribunal as an expert in land use planning and gave uncontested evidence evaluating the application for minor variances against the relevant public policy. Mr. Simpson’s Witness Statement dated January 26, 2023 was entered into evidence as Exhibit 1, and the Applicant/Appellant’s Document Book, dated January 20, 2023 was entered into Evidence as Exhibit 2.

Subject Property

6The subject property, located 487 Poplar Avenue, in the Town (the "Subject Property"), is within the Pickering Beach Neighbourhood and is surrounded by low density residential lots consisting of single detached dwellings.

Background

7The application was triggered by non-compliances with the building permit and the zoning requirements observed by Town staff during renovation which commenced after 2016. The existing dwelling and previous platform did not comply with the minimum setback requirements from the front lot line, as per the Town Zoning By-law No. 95-2003, as amended (the "ZBL"). This is a result of the original dwelling construction predating the ZBL. As the intent was for the new platform to maintain the existing legally non-complying setback, the originally proposed platform replacement did not create a zoning non-compliance and did not warrant the need for a minor variance application.

8However, once construction commenced for the new platform, Town staff observed that the platform, as constructed, deviated from the approved building permit drawings, particularly with respect to the setback from the front lot line. As a result, a building violation was issued, and a new zoning non-compliance was created due to the deficient setback. To-date, the new platform is only partially constructed. The Applicant/Appellant intends to maintain and finalize what has been constructed as part of the overall development proposal.

9Moreover, as part of additional proposed exterior renovations, support ornamental structures (pilasters) are proposed at the north and south ends of the existing front façade of the dwelling. The ZBL stipulates that such ornamental structures to a dwelling are permitted to encroach into any required setback. However, since the existing dwelling already encroaches into the required setback from the front lot line, such encroachment permissions for the ornamental structures are not applicable. As a result, Mr. Simpson advised that the proposed addition of ornamental structures creates a deficient setback and a zoning non-compliance that also needs to be addressed.

10The Applicant/Appellant had sought approval from the Town for the required variances in January 2022, to address the setback deficiencies for both the platform and the ornamental structures. Municipal staff had recommended approval of the variances, subject to three Conditions of Approval. This recommendation was brought forward to the Town’s Committee of Adjustment in August 2022. A vote on the motion to approve the application resulted in a tie vote. This tied vote resulted, therefore, in the refusal of the application.

ANALYSIS

11To succeed, an applicant for authorization of variances must satisfy the Tribunal that the four tests set out under s. 45(1) of the Planning Act are met by the application. The four tests require the applicant to satisfy the Tribunal that the variances:

i. maintain the general intent and purpose of the official plan;

ii. maintain the general intent and purpose of the zoning by-law;

iii. are desirable for the appropriate development or use of the land building or structure; and,

iv. are minor.

12In addition, as with any decision that affects a planning matter, the Tribunal must have regard to the matters of provincial interest as set out in s. 2 of the Act and, in accordance with s. 3(5) of the Act, must determine if the requested variances are consistent with the Provincial Policy Statement 2020 ("PPS") and conform to the Growth Plan for the Greater Golden Horseshoe ("Growth Plan").

Minor Variances

13The Tribunal finds that, based on the uncontested evidence, the four tests at s. 45(1) of the Act have been met and that the appeal should be allowed for the following reasons.

Official Plan and Zoning By-law

14The Tribunal is satisfied that the two proposed variances meet the general intent and purpose of both the Town’s OP and the ZBL. The evidence is clear that the OP envisages low density residential use on the Subject Property, and the ZBL permits single detached dwellings. As a result of the variances, the dwelling will continue to be a detached dwelling. The ZBL does not prohibit platforms and ornamental structures. Rather, platforms and ornamental structures are permitted provided certain setbacks are respected. While the ZBL would normally require a setback of 7.62 metres for both the platform and the ornamental structures, in this instance, the dwelling predates the ZBL. The dwelling, with an existing setback of 5.2 metres, already presents a legal non-complying setback and the Tribunal acknowledges this historical situation.

Desirable

15The Tribunal also finds that the variances are desirable for the appropriate development of the Subject Property. The proposed setback from the front lot line will ensure that the platform maintains a sufficient setback from the property line and that the streetscape of the surrounding neighbourhood is preserved. The Tribunal agrees with Mr. Simpson that such a setback will not infringe on the privacy of the abutting properties to the north and south, considering the extensive front lot line setback of the existing dwelling to the south, and the orientation of the existing dwelling to the north. Given the age of the existing dwelling, reduced dwelling and platform setbacks on the Subject Property have formed part of the neighbourhood streetscape for an extensive number of years.

Variances are Minor

16The Tribunal is satisfied that both variances sought are minor and will not cause any adverse impacts on the residents of the abutting properties and the neighbourhood in general.

17The previous platform had a setback of approximately 3.6 metres. By contrast, the new partially constructed platform has a setback of 2.6 metres, which is only a one metre difference. Given the size of the abutting boulevard, the 2.6-metre platform setback represents a sufficient setback from the property line. The platform is setback a considerable distance from the actual roadway of the Poplar Avenue right-of-way and does not present sightline issues.

18Similarly, the proposed ornamental structures will be setback 4.9 metres (south end) and 4.6 metres (north end) from the front lot line. The structures will project slightly out from the existing façade of the dwelling and will project slightly into the existing 5.2 metre setback. The Tribunal finds that this variance is a minor difference in the circumstances, both quantitatively and qualitatively. The proposed pilasters will have negligible visual impact on the streetscape as these ornamental structures will be located only at the north and south ends of the existing façade of the dwelling, adjacent to the proposed porch canopy/roof overhang.

19The Tribunal also finds that two of the Conditions of Approval are reasonable and not redundant with the legislative framework.

Relevant Planning Policy

20The variances requested are local in nature. Nevertheless, in his oral evidence, Mr. Simpson did refer to PPS 2020 and the Growth Plan. In his opinion, the proposed minor

variances were consistent with the PPS 2020 and conformed to the Growth Plan. In this regard, he noted that the application was for minor variances of an existing development. As the dwelling would continue to be a detached dwelling, there was no change to the density or form of the existing development.

21The Tribunal accepts the uncontested evidence of Mr. Simpson and finds that the proposed variances meet all the relevant policy test, including those of the PPS 2020, the Growth Plan and the Town’s Official Plan. It represents good planning.

ORDER

22THE TRIBUNAL ORDERS that the appeal is allowed and the variances to the Town of Ajax By-law No. 95-2003, as amended, are authorized subject to the following conditions:

i. that the Applicant maintains the existing drainage on the property; and,

ii. that the Applicant obtains the necessary building permit(s) from the Town’s Building Services Section.

"Jean-Pierre Blais"

JEAN-PIERRE BLAIS

MEMBER

"Bryan W. Tuckey"

BRYAN W. TUCKEY

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.