Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 27, 2023

CASE NO(S).: OLT-22-004317

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

Applicant/Appellant: Daniel Guajardo

Subject: Minor Variance

Description: To facilitate the construction of a new single detached dwelling

Reference Number: A-18/22

Property Address: 7 Vincent Avenue

Municipality: Town of Niagara-on-the-Lake

OLT Case No.: OLT-22-004317

OLT Lead Case No.: OLT-22-004317

OLT Case Name: Guajardo v. Niagara-on-the-Lake (Town)

Heard: February 22, 2023 via Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Daniel Guajardo

Patrick Maloney*

Victor Tarnoy

Self-Represented

Niagara-on-the-Lake

Karen Shedden*

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1Daniel Guajardo (the “Appellant”) has appealed the decision of the Town of Niagara on the Lake’s Committee of Adjustment (“Committee”) refusing to authorize a minor variance application (“MV Application”) regarding the property municipally known as 7 Vincent Avenue (“Subject Property”). The proposed MV Application requested nine minor variances to facilitate the construction of a new two storey, single family dwelling (“Proposed House”), designed to replace the current single family, one-storey dwelling currently on the property, which represents a legal non-conforming use.

2Nine minor variances were requested in the original application. The following relief was requested from the Town of Niagara on the Lake’s Zoning By-law 4316-09 (“ZB”) and considered in the original application before the Committee:

Variance Number

Requested Relief

a. Variance 1:

Maximum lot coverage from 40%, as required in the ZB, to 42.5%;

b. Variance 2:

Minimum front yard setback from 7.5 metres (“m”), as required in the ZB, to 4.56 m for the proposed covered verandah;

c. Variance 3:

Minimum front yard setback from 7.5 m, as required in the ZB, to 6.19 m for the first floor of the proposed dwelling;

d. Variance 4:

Minimum front yard setback from 7.5 m, as required in the ZB, to 5.58 m for the proposed second floor cantilever;

e. Variance 5:

Minimum rear yard setback from 7.5 m, as required in the ZB, to 3.33 m for the first floor of the proposed dwelling;

f. Variance 6:

Minimum rear yard setback from 7.5 m, as required in the ZB, to 2.88 m for the second floor cantilever;

g. Variance 7:

Minimum rear yard setback from 7.5 m, as required in the ZB, to 2.76 m for the proposed covered terrace;

h. Variance 8:

Maximum encroachment of the front steps from 1.5 m, as required in the ZB, to 3.83 m; and

i. Variance 9:

Maximum encroachment of the rear steps from 1.5 m, as required in the ZB, to 5.57 m.

3Although the Town of Niagara on the Lake’s planning department report supported the MV application, the Committee was of the view that it was not minor and refused authorization. There was considerable opposition to the MV application from residents of the neighbourhood.

4Following the appeal of the MV Application, the Town of Niagara on the Lake (the “Town”) and the Appellant negotiated a settlement agreement that resulted in the reduction of the number of requested minor variances and their impact. Variances 4 and 5 were adjusted and variance 6 was deleted. The revised list of variances before the Tribunal is as follows. The adjustments are bolded in the text.

Variance Number

Requested Relief

a. Variance 1:

Maximum lot coverage from 40%, as required in the ZB, to 42.5%;

b. Variance 2:

Minimum front yard setback from 7.5 m, as required in the ZB, to 4.56 m for the proposed covered verandah;

c. Variance 3:

Minimum front yard setback from 7.5 m, as required in the ZB, to 6.19 m for the first floor of the proposed dwelling;

d. Variance 4:

Minimum front yard setback from 7.5 m, as required in the ZB, to 5.58 5.11 m for the proposed second floor cantilever;

e. Variance 5:

Minimum rear yard setback from 7.5 m, as required in the ZB, to 3.33 m for the first floor of the proposed dwelling;

f. Variance 6: DELETED

Minimum rear yard setback from 7.5 m, as required in the ZB, to 2.88 m for the second floor cantilever;

g. Variance 7:

Minimum rear yard setback from 7.5 m, as required in the ZB, to 2.76 m for the proposed covered terrace;

h. Variance 8:

Maximum encroachment of the front steps from 1.5 m, as required in the ZB, to 3.83 m; and

i. Variance 9:

Maximum encroachment of the rear steps from 1.5 m, as required in the ZB, to 5.57 m.

5The settlement agreement proposes the following conditions:

1. that windows be prohibited on the side of the dwelling facing 5 Vincent Avenue; and,

2. that windows be prohibited on the side of the dwelling facing 9 Vincent Avenue, with the exception of a window for a stairway. (“Proposed Conditions”)

HEARING

6There were four individuals present at the hearing who requested Status. Margaret Walker, Mary Kilmer and Christine Earl were all granted Participant Status. Victor Tarnoy was given Party Status due to his extensive involvement in the proceedings before the Committee. Based on Mr. Tarnoy’s submissions, the Tribunal decided that his presence was necessary to adjudicate the issues in this case effectively and completely. Mr. Tarnoy, an architect, testified and made submissions against the MV application. He was not qualified as an expert in the field of land use planning.

7Two planning witnesses were presented by the Applicant, Mark Iamarino, the Town planner who reviewed the original application and wrote the Town’s planning report in support of the MV application and Jesse Auspitz, a registered planner who was engaged by the Applicant to review the application. Both planners were qualified to give expert evidence in the field of land use planning. Mr. Iamarino’s testimony essentially was consistent with and supported the testimony given by Mr. Auspitz.

8Counsel for the Town confirmed that the Town supported the MV application and agreed with all of the submissions of counsel and did not dispute the planning evidence presented by Mr. Auspitz.

9Counsel for the applicant requested an amendment to the original MV application under section 45(18.11) of the Planning Act (“Act”), without the need to give notice. This was granted by the Tribunal since the revised list of variances in the proposed amended application sought more moderate variances for Variance 4 and 5 and eliminated Variance 6.

10The appeal of the Committee decision to the Tribunal requires a hearing de novo of the Minor Variance application. The following planning evidence was given by Mr. Auspitz.

THE SUBJECT PROPERTY GENERALLY

11The Subject Property is in the Chautauqua area of the Town’s downtown, an area developed long before the current standards under the ZB. This neighbourhood of Chautauqua is planned on a circle hub and spoke road design. Each of the spokes includes a separate avenue that radiates from the circle hub road. The lots along the spoke avenues, including Vincent Avenue and Wilberforce Avenue vary in size, with the smaller lots being located closer to the circle. The Subject Property is located closer to the hub and thus is of a smaller size.

12It is important to note that based on the current standards in the ZB, almost any development in the Chautauqua neighbourhood requires approval of a minor variance application. Most of the properties in Chautauqua have reduced setbacks that do not conform to the ZB.

13The property is not in a designated heritage district and is not designated as a heritage property nor a heritage resource according to the Town records. Mr. Tarnoy was of the view that the property has historic value primarily due to its location in the Chautauqua area and its size.

OFFICIAL PLANS

14The Subject Property is designated Built-up Area and is within the Urban Area Boundary as per Schedule A of the Niagara Region Official Plan (2014 Consolidation) (“NROP”) and is designated Low Density Residential (Schedule B - Land Use Plan – Niagara/Old Town) and Urban Area Boundary – Built-up Areas (Schedule I-1 – Growth Management – Old Town) in the Niagara-on-the-Lake Official Plan (2017 Office Consolidation) (“NOLOP”). These designations all permit single family dwellings and envisage redevelopment and intensification of the built-up area of the Town where the Subject Property is located. All such redevelopment is to be compatible with the surrounding neighbourhood.

15The NROP provides that Built-Up areas like those where the Subject Property is located will be the focus of residential intensification and redevelopment in the Region. Thus, the proposed development conforms with the NROP.

16The NOLOP seeks to manage residential growth within existing Neighbourhoods where there is appropriate infrastructure. Intensification is to be directed such that there will not be an impact on designated heritage areas, heritage resources or adjacent heritage resources. The proposed single-family dwelling conforms to the growth strategies of the NOLOP.

17The NOLOP also deals with the compatibility of proposed development. The planning evidence was that the proposed development will be similar in mass, scale and design to surrounding properties. Several comparable buildings were identified on both Vincent and Wilberforce Avenues.

LEGAL NOT CONFORMING STATUS OF THE SUBJECT PROPERTY

18The ZB permits 2 storey homes that comply with the performance standards of the ZB. The current dwelling on the Subject Property, a one storey structure, is legal non-conforming and does not comply with many of the requirements of the ZB.

19Section 34 (9) of the Act states that:

“No by-law passed under this section applies,

(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; …

20The existing single-detached dwelling has a front yard setback of 4.29 m and rear yard setback of 2.74 m. These setbacks do not conform to the requirements of the ZB. The ZB requires a minimum 7.5 m front yard setback and a minimum 7.5 m rear yard setback.

21The planning evidence emphasized the following regarding the legal non-conforming status of the dwelling:

1. Based on the setback requirements of the ZB, no dwellings could be built on the property without relief from the ZB.

2. The legal non-conforming Use status of the Subject Property runs vertically upward, meaning that a second storey to the current dwelling would be permitted as-of-right.

3. All owners who use legal non-complying buildings and structures on their lands have an acquired right that cannot be modified or taken away. Such rights include the right to demolish, right to reconstruct a building or structures and the right to seek planning approval to expand or enlarge the legal non-complying building.

22The proposed two storey dwelling is essentially within the footprint of the existing one storey dwelling. There is a small portion at the northwest corner of the proposed dwelling that would extend beyond the legal non-conforming rear wall of the existing dwelling towards the adjacent lands at 9 Vincent Avenue. The size of this extension is approximately 4 square metres (“m²”).

23Based on this planning evidence, it is conceivable that the Applicant could build a two-storey dwelling within the exact footprint of the current dwelling without the need to seek any minor variances. Mr. Auspitz was of the opinion that the relief sought in the MV application should be viewed from the lens of the current building footprint and the variances from that footprint. This planning evidence contradicted the evidence and submissions of Mr. Tarnoy. The thrust of Mr. Tarnoy’s evidence and submissions was that the proposed dwelling is oversized and ill-suited to the neighbourhood.

MINOR VARIANCE APPLICATION

24Mr. Auspitz’s planning evidence reviewed the MV application based on the four tests under section 45(1) of the Act. The variances were grouped into four categories and each category was reviewed separately under the statutory tests. In covering the four statutory tests, this decision will first discuss each of these groups of variances with respect to whether they are minor and desirable. The issue of whether the proposed relief maintains the intent and purpose of both the ZB and NOLOP will be reviewed on a general basis for all the variances as a whole.

25Following the review of this planning evidence, the arguments and evidence of Mr. Tarnoy will be considered. Mr. Tarnoy and the participants essentially oppose the development since they believe that permitting the minor variances will result in an over-sized house on a small lot and negatively impact the historic value of the neighbourhood.

MAXIMUM LOT COVERAGE (VARIANCE 1)

26The first variance reviewed by Mr. Auspitz was the proposed increase of maximum lot coverage under the ZB from 40% to 42.5%. The evidence was that the variance is minor since no adverse impacts are anticipated to grading, drainage and shadowing relative to the neighbouring properties.

27Similarly, the proposed dwelling will be desirable since it will fit within the range of sizes of other dwellings in the neighbourhood and would be compatible in terms of massing, height, and setbacks with the surrounding neighbourhood.

MINIMUM FRONT YARD SETBACKS (VARIANCES 2, 3 AND 4)

28The second group of variances reviewed by Mr. Auspitz all related to the reduction of minimum front yard setback of 7.5 m as follows:

1. 4.56 m for the proposed covered verandah (Variance #2),

2. 6.19 m for the first floor of the proposed dwelling (Variance #3), and

3. 5.11 m for the second floor cantilever (Variance #4).

29The proposed front yard setback variances will bring the proposed house closer to the street, creating a more uniform street line than exists today. The proposed dwelling will almost fit within the existing legal non-conforming front yard setback for the current dwelling. Based on the front yard setbacks of the current dwelling, of adjacent dwellings and of dwellings elsewhere on Vincent Avenue, these variances are considered to be minor. They will not negatively impact adjacent dwellings or the character of the streetscape.

30These variances are desirable for the appropriate development of the land, building, or structure since they will lead to a consistent streetscape along Vincent Avenue.

MINIMUM REAR YARD SETBACKS (VARIANCES 5 AND 6)

31The third group of variances reviewed by Mr. Auspitz all related to the reduction of minimum rear yard setback of 7.5 m required by the ZB as follows:

1. 3.33 m for the proposed dwelling (Variance #5)

2. 2.76 m for the proposed covered terrace (Variance #7)

32The rear yard setback of the existing dwelling ranges between 2.74 m and 4.20 m, except for a small section on the northwest portion of the dwelling that is further setback from the rear lot line. The proposed dwelling would be within the rear yard setback range established for the existing legal non-conforming dwelling, except for a small portion on the northwest portion of the proposed dwelling. The corner that would not comply with the legal nonconforming use is 4 m² in area and would maintain the alignment of the legal non-conforming rear wall of the existing dwelling.

33The proposed variances to the rear yard setbacks are considered to be minor by Mr. Auspitz. They will not significantly increase the intensity of privacy and overlook impacts on adjacent dwellings from the existing situation.

34The variances are considered to be desirable since they will result in a uniform building wall at the rear.

MAXIMUM ENCROACHMENT FROM PORCH STEPS

35The final group of variances reviewed by Mr. Auspitz relates to the maximum projection (encroachment) into a required front or rear yard for unenclosed or uncovered porch, deck, balcony, patio or steps from 1.5 m to:

1. 3.83 m for the front steps (Variance #8), and

2. 5.57 m for the rear steps (Variance #9).

36The planning evidence was that these encroachments will have no significant impact on adjacent uses and thus are of a minor nature. The variances are considered to be desirable since they facilitate a low density development similar to what is found elsewhere in the neighbourhood. These type of encroachments in the yards from steps are common within the neighbourhood.

THE INTENT AND PURPOSE OF THE ZB AND THE NOLOP

37The planning evidence was that all the variances required for the proposed house will maintain both the intent and purpose of the ZB and the NOLOP. Compatibility is the lens through which Mr. Auspitz views both the ZB’s and NOLOP’s intent and purpose. Based on the photographic evidence of neighbouring properties, in Mr. Auspitz’s view the proposed house will be compatible with the surrounding development, which is low density residential. It is anticipated that there will be no compatibility issues with respect to scale, massing, height and setbacks relative to the surrounding neighbourhood.

ARGUMENTS AGAINST THE PROPOSED HOUSE

38Mr. Tarnoy opposes the MV Application since he believes that its authorization will result in an over-sized house on a small lot and negatively impact the historic value of the neighbourhood.

39The planning evidence contradicted both these arguments. The Tribunal prefers and accepts the planning evidence and arguments of counsel for the Appellant over the evidence and arguments presented by Mr. Tarnoy.

40Given the legal non-conforming status of the current house on the property, a two-storey home can be constructed within the same footprint as-of-right. The proposed dwelling has a marginally larger footprint. Furthermore, the Tribunal finds that the proposed home is compatible with the neighbouring properties and the variances sought all comply with all the requirements of section 45(1) of the Act.

41Turning to the argument regarding historic value, the Tribunal finds that it does not have merit. The property and the neighbourhood have no officially recognized historical label. The property is not in a designated heritage district and is not designated as a heritage property nor a heritage resource according to the Town records.

42Mr. Tarnoy’s view that the property has historic value, primarily due to its location in Chautauqua area and size of the house, is not supportable. There are no planning restrictions on its redevelopment. Mr. Tarnoy identified the unique hub and spoke street design of Vincent Avenue and this part of Chautauqua as having historic value. The proposed house will not impact the street design. The lot will stay the same size. The only thing that will change is the size of the house. Although Mr. Tarnoy’s preference may be that the house remain a modest one storey structure, as originally built and designed for the community, there is nothing that prevents a larger house on the lot due to the legal non-conforming status of the property and what is permissible under the ZB.

PROPOSED CONDITIONS AND PROVINCIAL POLICY STATEMENT (2020) AND PROVINCIAL POLICIES

43Mr. Auspitz reviewed the Proposed Conditions and advised the Tribunal that they are reasonable, customary and advisable. The Tribunal accepts this evidence.

44The Act requires the proposed development to be consistent with the Provincial Policy Statement (2020) (“PPS”) and that it conform with the Greenbelt Plan and A Place to Grow: Growth Plan for the Greater Golden Horseshoe (Office Consolidation 2020) (“Growth Plan”). The Greenbelt Plan requires that the Subject Property be subject to the Growth Plan. The planning evidence confirmed that the proposed development will contribute to the range and mix of housing and thus is consistent with the PPS and conforms with the Growth Plan.

45The Tribunal accepts the evidence of Mr. Auspitz and finds that each of the variances proposed by the MV Application complies with section 45(1) of the Act and the Proposed Conditions are reasonable and appropriate. The Proposed Home that will result from the authorization of the MV Application is consistent with the PPS and conforms with the Growth Plan.

ORDER

46THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By- law Zoning By-law 4316-09 are authorized subject to the Proposed Conditions.

“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.