Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 20, 2023
CASE NO(S).: OLT-22-004765
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2312205 Ontario Ltd.
Subject: Minor Variance
Description: To permit to increase the maximum permitted lot coverage in the ‘Residential Zone 1 Urban – Exception 24 (R1.1-24)’ zone, specific to this subject lot to 39%.
Reference Number: A/16/22
Property Address: 9 Gregory Avenue
Municipality/UT: Kingsville/Essex
OLT Case No.: OLT-22-004765
OLT Lead Case No.: OLT-22-004765
OLT Case Name: 2312205 Ontario Ltd. v. Kingsville (Town)
Heard: February 27, 2023 via video hearing
APPEARANCES:
Parties
Counsel/Representative*
2312205 Ontario Ltd. (“the Applicant” or “the Appellant”)
Self-Represented*
Town of Kingsville (“the Town”)
Zachary Knox
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
1. BACKGROUND
1The Appellant has appealed the decision of the Committee of Adjustment (“Committee”) of the Town of Kingsville refusing to authorize a minor variance application (“MV Application”) regarding the property municipally known as 9 Gregory Avenue (“Subject Lands”). The effect of the MV application is to propose an increase to the maximum lot coverage to 39% to facilitate the construction of a new single family, detached dwelling which includes a roofed-in terrace. The open roofed-in terrace increases the lot coverage by 4% over the 35% maximum coverage stipulated by the Town's By-Law 1-2014, as amended (the "ZB").
2The Committee did not authorize the MV application despite the Town’s planning staff report which endorsed approval. The Applicant appealed the decision. Prior to the hearing the Town and the Applicant entered into a settlement agreement.
3An uncontested hearing was held. The Town supported the application and took the lead in presenting the case in favour of granting the appeal with the approval of the Applicant. The Town Planner, George Robinson, who authored the Town’s planning report supporting the application presented the planning evidence. He was qualified as an expert witness to give opinion evidence in the field of land use planning.
2. contextual planning evidence
4Mr. Robinson provided the following context regarding the application. The Subject Lands consist of one (1) parcel which is approximately 1,093 square metres (m2). The Subject Lands are designated as "Residential" under the Town's Official Plan (“Town OP”) and zoned as "Residential Zone 1 Urban - Exception 24 (R1.1-24)" under ZB.
5The Appellant is in the process of constructing a single family, detached dwelling (the "Dwelling") on the Subject Lands. The Dwelling is designed to be approximately 427 m2 and, of that total amount, approximately 33 m2 is designated for a roofed-in terrace.
6The permitted lot coverage for the Subject Lands, under the ZB, is 35%. However, the attachment of the roofed-in terrace to the Dwelling results in a total lot coverage of 39%. Therefore, the Application requested relief to increase the maximum permitted lot coverage specific to the Subject Lands to 39%.
3. SECTION 45(1) OF THE ACT
7The following planning evidence related to the MV application’s compliance with section 45(1) of the Planning Act (“Act”).
3.1. general intent and purpose of the official plans
8Both the Town OP and the County of Essex Official Plan (“County OP”) do not specifically address the issue of lot coverage. Both official plans encourage a wide range of housing types. Compatibility is dealt with in both official plans and the evidence was that the Dwelling is compatible with the surrounding single-family, detached dwellings on large lots in the neighbourhood. In the planner’s view, the intent and purpose of both official plans is maintained since the area is planned for residential uses and the proposed dwelling will have a design that will maintain the existing character of the surrounding residential area of newly constructed single dwelling units on large lots.
3.2. general intent and purpose of the zoning by-law
9The maximum permitted lot coverage requirements under the ZB are designed to ensure that each lot has sufficient area for green space. The planning evidence confirmed that a 35% lot coverage ZB requirement was set for the area where the Dwelling is found due to original plan of subdivision for large detached homes in the area on large lots. The Town typically has 40% to 50% maximum lot coverage requirements in the ZB for other areas. The Requested Variance will maintain the green space purpose since the proposed roofed-in terrace for the Dwelling will effectively enhance the outdoor amenity space on the Subject Lands. The roofed terrace will be open to the elements and will not affect the building massing.
10The maximum permitted lot coverage under the ZB is also designed to limit the amount of impervious surface which can discharge to a storm water system. The Subject Lands drain directly into an artificial storm water management pond at the rear of the property. The additional impervious surface resulting from the allowance of the MV Application will not impact the neighbours with additional storm water run-off.
3.3. desirability
11In the planner’s view, the Requested Variance is desirable for the appropriate use of the Subject Lands and the Dwelling. The proposed roofed-in terrace to be attached to the Dwelling requiring the increased lot coverage will enhance the outdoor amenity space on the Subject Lands.
3.4. Minor
12The evidence was that the application is minor in nature. There are no unacceptable adverse impacts from a planning standpoint to the adjacent property owners. The Applicant’s Planner confirmed that he considered all potential adverse planning impacts resulting from the minor variance. In his professional opinion the Requested Variance will not impact the surrounding area from a functional or visual standpoint. Visually, the roofed terrace will not be perceptible from the street. There will be no adverse impact from additional storm water run-off to the neighbours and the outdoor amenity space will not be negatively impacted.
13Several of the lots in the area immediately surrounding the Subject Lands are irregularly shaped and are much smaller than the Subject Lands, which means that the Requested Variance would not result in the Subject Lands being out of place in the surrounding area. Mr. Robinson also advised that a 39% lot coverage was authorized as a minor variance at 13 Gregory Avenue, a neighbouring property.
4. proposed condition and pps
14The Town proposes the following condition for the approval of the MV Application: “subject to the condition that all other provisions of By-Law 1-2014, as amended, be complied with.” The planning evidence was that this is reasonable, appropriate and typical for such an application.
15With respect to provincial policy and plans, the Tribunal was advised by the planner that no provincial plans cover the Town and the application is consistent with the PPS. The land is in a settlement area and the PPS drives development of a range of housing types to the settlement areas. No matters of provincial interest arise from the application.
16In summary, the Tribunal accepts the evidence of Mr. Robinson and finds that the MV Application complies with the requirements of subsection 45(1) of the Planning Act. It is minor, desirable for the use and development of the Subject Lands and maintains the general intent and purpose of both the applicable official plans and the ZB. The Tribunal also finds that the application is consistent with the PPS.
ORDER
17THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law 1-2014 is authorized, subject to the condition that the Applicant complies with all other provisions of the referenced By-law.
“A. Cornacchia”
a. cornacchia
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.