Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 10, 2023

CASE NO(S).: OLT-22-004539

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

Applicant and Appellant: Michael von Kaitz

Subject: Minor Variance

Description: To seek relief from the zoning by-law to permit combined width of all the hard surfaces to be 5.6 metres instead of the maximum permitted 4.5 metres for an existing driveway and walkway

Reference Number: 540-02-A-085/2020

Property Address: 5002 Des Jardines Dr.

Municipality/UT: Burlington/Halton

OLT Case No.: OLT-22-004539

OLT Lead Case No.: OLT-22-004539

OLT Case Name: Von Kaitz v. Burlington (City)

Heard: February 9, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Appellant/Applicant Michael Von Kaitz	Michael Von Kaitz
City of Burlington	Blake Hurley*

DECISION DELIVERED BY Kurtis Smith AND Steve deBoer and ORDER OF THE TRIBUNAL

Introduction

1This matter had been scheduled for a one-day hearing commencing February 9, 2023, to consider the appeal by Michael Von Kaitz (the “Appellant”) under s. 45(15) of the Planning Act (the “Act”) due to the City of Burlington (the “City”) Committee of Adjustment’s (the “COA”) decision to deny the minor variance application request in relation to Zoning By-law 2020 (the “ZBL”).

2The Subject Property is municipally known as 5002 Des Jardines Drive, City of Burlington, in the Regional Municipality of Halton (“Region”).

3The Application was heard by the COA on May 11, 2022, and considered the following requested variance:

• To permit the combined width of all hard surfaces to be 5.6 metres (“m”) whereas the maximum width of 4.5m is permitted for a driveway and walkway.

4For the COA meeting on May 11, 2022, the City Planning Staff made the following recommendation for the COA’s consideration:

• Staff has reviewed the subject application in accordance with the Planning Act, the policies of the Official Plan and the requirements of the Zoning By-law and objects to the requested variance based on the information provided. Should the Committee approve the requested variance, staff recommend, as a condition of minor variance approval, a grading and drainage plan, to the satisfaction of Site Engineering, be submitted.

5The COA denied the Application based on the following reasoning:

i. The proposal conflicts with the intent and purpose of the City of Burlington Zoning By-law and Official Plan.

ii. The proposal is not minor or desirable for the development and use of the land.

iii. Additionally, Committee Members felt the request to increase the hard surface was not in accord with the Zoning By-law or Official Plan Policies; the regulations and policies were in effect to ensure adequate greenspace was accounted for in this neighbourhood; the application before the Committee did not achieve this and had the potential for causing adverse impacts to neighbouring properties especially as it related to grading and drainage; hardscaping almost the entire front yard was not desirable for the appropriate development or use of the land nor was it minor in nature.

6The Applicant then appealed the decision of the COA to the Tribunal.

Exhibits

7The following Exhibit was marked at the hearing:

• Exhibit 1: Municipal Book of Record

Legislative Framework

8An appeal pursuant to s.45 of the Planning Act is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met. These tests are that the variance:

i. maintains the general intent and purpose of the Burlington Official Plan (“BOP);

ii. maintains the general intent and purpose of the ZBL;

iii. is minor in nature; and

iv. is desirable for the appropriate development or use of the land, building or structure.

9Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

Planning Evidence

10The Applicant informed the Tribunal that the Application was applied for to conform to the ZBL following a complaint filed with the City. The hard surface width has been installed since 2018 with no adverse effect.

11The City stated during commencement of the hearing that they are supportive of the Application with one condition. The planning report prepared for the COA concluded that staff was unable to advise if the Application met the four tests of a minor variance as a grading and drainage plan was not submitted.

12In support of the Application, the City presented one witness to the Tribunal, Mr. Cary Clark, Manager of Development and Stormwater Engineering for the City. Mr. Clark is a licenced professional engineer in Ontario and has over 39 years of experience in the field. He was affirmed and qualified to give site engineering and stormwater management expert evidence pertaining to the matter that was before the tribunal.

13Mr. Cary attended the Subject Property for a site visit in September 2022. He indicated that the driveway/walkway had an appropriate slope.

Provincial Policy statement & the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

14The City stated that the Application has appropriate regard for matters of provincial interest, as enumerated in section 2 of the Act, and is consistent with the PPS.

City of Burlington Offical Plan

15The BOP does not speak specifically to hard surfacing pertaining to the Uptown Mixed-Use Centre - Medium-Density Residential or Uptown Commercial/Residential 3 designations. However, the BOP requires new development to be compatible with the surrounding area.

16The City reviewed Part II, S. 6.5 of the Design Guideline Policies for the Tribunal. Section A states that the density, form, bulk, height, setbacks, spacing and materials of development are to be compatible with its surrounding area. Furthermore, compatibility is defined as:

• Development or re-development that is capable of co-existing in harmony with, and that will not have an undue physical (including form) or functional adverse impact on, existing or proposed development in the area or pose an unacceptable risk to environmental and/or human health. Compatibility should be evaluated in accordance with measurable/objective standards where they exist, based on criteria such as aesthetics, noise, vibration, dust, odours, traffic, safety and sun-shadowing, and potential for serious adverse health impacts on humans or animals.

17The City is of the opinion that grading and drainage details are required to ensure that the additional hard surface meets the requirements of the BOP.

18The Applicant is agreeable to providing grading and drainage details to the City and is of the opinion that the application conforms with the BOP.

City of Burlington ZBL 2020

19The Subject Property is zoned UCR3-271, Uptown Commercial/Residential 3 Zone with exception 271. The permitted combined maximum width of all hard surfaces on the Subject Property is 4.5 m. Whereas the Application is requesting relief for an additional 1.1 metres for a total of 5.6 m.

20The intent of this regulation is to maintain a balance between paved and green front yard, and to ensure transportation safety concerning road access. It also helps ensure the site maintains proper infiltration of stormwater and conveyance of runoff to adjacent properties and the street.

21The City is of the opinion that grading and drainage details are required to ensure the that increased hard surface will not generate a negative drainage impact to the adjacent properties and surrounding streetscape.

22The Applicant noted that the hard surface area has been installed since 2018 without any notable issues. However, the Applicant is agreeable to submitting grading and drainage details to the City.

23On street parking is not permitted in front of the Subject Property. Therefore, there will not be any lost on-street parking as a result of extending the width of the hard surface.

24The City and Applicant are both of the opinion that the application meets the general intent of the ZBL, with the above noted condition.

Desirable and appropriate development of the land

25The Applicant stated to the Tribunal that young adults are staying at home longer with their parents due to the housing crisis. As a result, many of the neighbours in the area have more than two vehicles. The additional vehicles must park on the street and finding this additional space for parking becomes challenging due to the parking bylaw during the winter season.

26The City agrees with the Applicant that more homes are becoming multigenerational and the additional hard surface will assist with additional parking for the additional vehicles.

27Both the Applicant and City agree that the Application is desirable and appropriate.

Minor In Nature

28The Applicant took the Tribunal through a series of photos of similar properties in the neighbourhood. The photos provided show properties with hard surfaces which appear to extend the entire width of their front yard.

29Mr. Clark, during his testimony, confirmed that, during his site visit, several properties within the neighbour have hard surface widths that exceed the maximum permitted width.

30The City and Applicant are of the opinion that the Application is minor in nature.

Analysis and findings

31The Tribunal agrees with the City that once the Applicant provides grading and drainage details to the satisfaction of the City’s Development Engineering Group the Application will meet the intent and purpose of the BOP and ZBL.

32The Tribunal finds that from the neighbourhood context provided by the Applicant, namely the neighbourhood photos, it is quite evident that the additional hard surface is minor in nature and is desirable for the area.

33The Tribunal concurs with the uncontested evidence of the City and Applicant that the Application meets the four tests to a minor variance with the above noted condition.

ORDER

34The Tribunal Orders that the appeal is allowed and the variance to Zoning By-law 2020, permitting the combined width of all hard surfaces to be 5.6m, whereas of the maximum of 4.5m is permitted, is herby authorized subject to the following condition:

i. That the Applicant provide grading and drainage details to the satisfaction of the City’s Development and Engineering Group.

“S. deBoer"

S. deBOER MEMBER

“Kurtis Smith”

KURTIS SMITH 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.