Elgner v. Oakville (Town), 2023 CanLII 32577

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 29, 2023 CASE NO(S).: OLT-22-003865

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

Applicants/Appellants: Neil and Brittaney-Ann Elgner Subject: Minor Variance Description: To increase driveway width, garage floor area, and dwelling depth in order to construct a new two-storey dwelling and pool pavilion. Reference Number: CAV A/024/2022 Property Address: 24 Colonial Crescent Municipality/UT: Oakville/Halton OLT Case No.: OLT-22-003865 OLT Lead Case No.: OLT-22-003865 OLT Case Name: Elgner v. Oakville (Town)

Heard: November 22, 2022 by Video Hearing

APPEARANCES:

Parties Neil and Brittaney-Ann Elgner

Counsel Matthew Di Vona

Parties Town of Oakville

Counsel Dennis Perlin

MEMORANDUM OF ORAL DECISION DELIVERED BY S. MANN ON NOVEMBER 22, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Neil and Brittaney-Ann Elgner (“Appellants”) own the property known municipally as 24 Colonial Crescent (“Subject Property”). To facilitate the redevelopment of the Subject Property, the Appellants applied to the Town of Oakville (“Town” or “Oakville”) for minor variances in order to allow for the construction of a new two-storey detached dwelling and pool pavilion. The minor variances are to address Zoning By-Law No. 2014-014 (“ZBL”) deficiencies for the proposed development.

2The Parties appeared before the Tribunal for the purpose of a settlement hearing.

SITE CONTEXT

3The Appellants are seeking a minor variance to permit a maximum dwelling depth of 28.54 metres (“m”), whereas the ZBL permits 20 m.

4The Subject Property is located in a mature residential subdivision in the southeast area of Oakville, south of Lakeshore Road East and east of Morrison Road. The Subject Property is irregular in shape and measures 2,304 square metres (m²). Currently, there exists a large one-and-a-half storey detached dwelling with an integral garage.

5The Subject Property is designated Urban Area by the Regional Municipality of Halton Official Plan (“Region OP”). It is within the Residential Areas and has a land use designation of Low Density Residential. The Zoning is RL1-0 Residential Low Zone, in the ZBL. The RL1-0 zoning permits the use of a detached dwelling.

6The surrounding area is an established neighbourhood in southeast Oakville, comprising of one and two storey detached residential buildings on similar sized lots in a wide variety of architectural styles as well a number of properties have rear yard pools. In the area is the Oakville Go Station, located a 10-minute drive from the Subject Property, is within walking distance of two schools as well as Gairloch Gardens to the east.

APPLICATION

7The Appellants originally submitted their application in December of 2021 seeking the following variances:

1. Maximum dwelling depth of 28.54 m, whereas 20 m is permitted;
2. Maximum driveway width of 11.28 m, whereas 9 m is permitted; and,
3. Maximum garage floor area of 74.96 m², whereas 56.0 m² is permitted.

8Town staff supported the variance for maximum dwelling depth but objected to variances to the maximum driveway width and maximum garage area. The Town Committee of Adjustment (“COA”) deferred the application on March 8, 2022, in order to facilitate consultation with Town staff and local residents. Following a virtual meeting with concerned neighbors on April 13, 2022, the application was revised to remove variances for maximum driveway width and garage floor area as revisions to design allowed compliance.

9The opinion of Town staff was to support the revised application noting the single variance met the requirements of s. 45(12) of the Planning Act (“Act”). Town staff recommended two standard conditions: (1) that the dwelling be built in general accordance with the submitted plans; and (2) that the variance would lapse in two years, in the event no building permit was issued for development.

10The COA refused the proposed variance, following which the Appellants appealed on May 11, 2022.

SETTLEMENT

11Prior to the hearing, Parties provided Minutes of Settlement (“MOS”) and notified the Tribunal of their intent to request settlement of this matter.

12The Tribunal relied on the testimony of Paul Demczak, a witness appearing on behalf of the Appellants, qualified in the area of land use planning. On the basis of the MOS and the expert opinion of Mr. Demczak, the Tribunal concluded that the requested variance met the requirement of s. 45(12) of the Act.

ANALYSIS

13It was the opinion of Mr. Demczak that the variance complies with the four tests at s. 45(1) of the Act stating that the proposed variance is: (a) consistent with the general intent and purpose of the Official Plans; (b) consistent with the general intent and purpose of the Zoning By-Law; (c) desirable for appropriate development and use of the land; and (d) minor in nature.

General Intent and Purpose of the Official Plan

14The Region OP provides clear direction on how development should take place in Halton Region to meet current and future needs. The Region OP identifies the objective of lands designated Urban Area, such as the Subject Property, to create healthy communities and provide a range of identifiable inter-connected and complete communities of various sizes, types and characters, which afford maximum choice for residence, work and leisure. This direction from the Region OP is in keeping with the guidance of the Provincial Policy Statement (“PPS”) as well as the Growth Plan for the Greater Golden Horseshoe (“GP”). It was the opinion of Mr. Demczak that the proposed development is consistent with the general intent and purpose of the Region OP.

15The Livable Oakville Plan (“Town OP”), establishes desired land use patterns for the Town. A guiding principle within the Town OP is to create a livable community in order to preserve, enhance, and protect the distinct character, cultural heritage, living environment and a sense of community, Neighbourhoods. It was the uncontested expert opinion of Mr. Demczak that the proposed development was in line with this principle.

16A further concern is ensuring that development in residential areas conform with policies related to urban design of the Town OP. It was demonstrated through the use of a report from the Appellants’ architect, that the proposed development conforms to the urban design requirements. The proposed development is compatible with the surrounding neighbourhood, which consist of a variety of housing types including new homes, renovations and original bungalows. In order to remain compatible with the neighbourhood, the Appellants propose to use a one-and-a-half storey design, thereby softening and reducing the building mass. The garage will be discreetly located to the east side of the Subject Property to minimize impact. The design maintains the lot pattern of frontages on both flanking sides through the use of the proposed house and garage, connected by an archway. The Appellants also retained a landscape architect to ensure the mature trees on the Subject Property would be enhanced rather than negatively impacted by the proposed development.

17The proposed development constitutes replacement of an existing dwelling consistent with the land use designation of the area. An allowance of 10 units per hectare is permitted by the Town OP and the proposed development will not change density in the neighbourhood. The proposed development also intends to make use of the front façade, building materiality, floor levels and built form to break up the massing and façade in order to diminish perception of its overall scale in relation to adjacent properties.

General Intent and Purpose of the Zoning By-Law

18The requested variance intends to increase the maximum dwelling depth. The general intent of dwelling depth regulation is to ensure both a reasonable degree of consistency in massing in relation to the surrounding area as well as to ensure that impacts associated with a deeper dwelling depth such as light, view and privacy impacts do not occur.

19As the Subject Property is a larger lot, with the proposed development having greater than the required side yard setbacks, with a building height consistent with area dwellings and with the use of landscape buffering, the impact of additional depth is sufficiently mitigated. The only portions of dwelling depth exceeding the ZBL requirements are located at the northern wing of the dwelling, which has a significant setback from the adjacent property of 13.8 m.

Appropriate and Desirable

20The proposed development is appropriate in the context of the surrounding neighbourhood. The scale, massing, height and siting reflects the prevailing form of houses in the local context. The Appellants have taken measures to ensure this through such means as the use of a one-and-a-half-storey, as opposed to a larger dwelling; the use of design features to soften massing concerns and an increased setback to the north.

Minor in Nature

21When considering whether a variance is minor in nature, adverse impact is a key consideration. When considering, in this instance, impact on streetscape due to the increase dwelling depth is of key concern.

22As discussed in more detail above, the architectural design of the proposed development instill mitigating factors to the proposed new dwelling to minimize massing impacts. Further, Mr. Demczak demonstrated to the Tribunal that there have been a number of applications for minor variance in regards to dwelling depth, with a range of 22.05 m to 38.3 m, placing the proposed development well within existing conditions of the area.

23A further point raised by the Appellants in regards to this criteria for minor variance is that the as-of-right permissions of the Subject Property, allow a built form with larger massing and scale than the proposed development, being located much closer to the street and public realm.

FINDINGS

24The evidence put forward, in support of the Appeal, stood uncontroverted and supported by the Town as demonstrated by the MOS. The Tribunal wholly accepted the detailed testimony of the witnesses and is satisfied that the proposed minor variance meet all requisite Legislative tests and are, in general, representative of good planning and is in the public interest.

25In so finding, due regard has been given to matters of Provincial interest, including but not limited to: the orderly development of safe and healthy communities; and the appropriate location of growth and development.

26With respect to the matter of conditions to be imposed, the Tribunal finds the conditions recommended in the Staff Report, requested by the City and consented to by the Appellants are reasonable, having regard to the nature of the proposed consents. Accordingly, the Tribunal will impose the conditions.

ORDER

27THE TRIBUNAL ORDERS the Appeal is allowed and the variance to By-law No. 2014-014 to permit a max dwelling depth of 28.54 metres is authorized subject the following conditions:

1. That the dwelling be built in general accordance with the submitted site plan and elevation drawings dated March 22, 2022 attached hereto; and,
2. That the approval expire two (2) years from the date of this order if a building permit has not been issued for the proposed construction by that time.

“S. Mann”

S. MANN 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.