Fletcher et al. v. Oakville (Town), 2023 CanLII 36261

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

April 24, 2023

CASE NO(S).:

OLT-22-004681

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

Applicant and Appellant:

Dona Asciak and Larry Fletcher

Subject:

Minor Variance

Description:

To permit construction of an addition to the rear of an existing designated heritage dwelling for the purpose of enlarging of an existing three-car garage

Reference Number:

CAV A/109/2022

Property Address:

1118 Lakeshore Road East

Municipality/UT:

Oakville/Halton

OLT Case No.:

OLT-22-004681

OLT Lead Case No.:

OLT-22-004681

OLT Case Name:

Fletcher et al. v. Oakville (Town)

Heard:

March 1, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Dona Asciak & Larry Fletcher Town of Oakville

Denise Baker Dennis Perlin

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN AND S. deBOER ON MARCH 1, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter had been scheduled for a three-day hearing commencing on March 1, 2023, to consider the Appeal under s. 45 (12) of the Planning Act (“Act”) by Dona Asciak and Larry Fletcher (the “Appellants”) from the Decision of the Committee of Adjustment (the “COA”) of the Town of Oakville (the “Town”) denying the Appellants’ requested minor variances. Prior to convening this Hearing the Tribunal was advised that a settlement had been reached and that the parties were seeking an Order approving the Settlement.

2The Subject Property is municipally known as 1118 Lakeshore Road East, Town of Oakville. The intent of the original Minor Variance Application was to facilitate the construction of a garage addition, a side and rear yard addition and a new accessory pool house structure.

3The location of the Subject Property is within the south-east portion of the Town, within a well-established and highly desirable neighbourhood consisting of one and two-storey detached dwellings of various sizes and heights. The Subject Property is improved with a farmhouse built circa1866 which, having some local historic significance, has been designated under Section 29, Part IV of the Ontario Heritage Act (“OHA”) as a property of historical, architectural, and contextual value and interest through By-law 1993-023.

4The Subject Property comprises approximately 2,784 square metres in size, is irregularly shaped and has frontage onto Lakeshore Road East of 33.91 metres.

5The original Minor Variance Application was submitted in March 2022 requesting relief form the Town’s Zoning By-law 2014-014 (“ZBL”) and was scheduled to be heard at the COA meeting of July 7, 2022. The Application was deferred at that time to allow for a revised proposal to be presented to the COA.

6The Application was heard by the COA on November 1, 2022. The relief being sought in the Application was:

No.	Zoning By-law Regulation	Variance Request
1	Section 5.8.2 c) iii) The maximum width of a driveway shall be 9.0 metres for a lot having a lot frontage equal to or greater than 18.0 metres.	To permit the maximum width of the driveway to be 15.75 metres for a lot having a lot frontage equal to or greater than 18.0 metres.
2	Section 5.8.6 c) For lots located within the Residential Low (RL1) Zone the maximum total floor area for a private garage shall be 56.0 square metres.	To permit the maximum total floor area for the private garage to be 137.56 square metres.
3	Table 6.3.1 (Row 5, Column RL1) The minimum interior side yard shall be 4.2 m.	To permit a minimum (easterly) interior side yard of 2.69 m.
4	Table 6.3.1 (Row 5, Column RL1) The minimum interior side yard shall be 4.2 m.	To permit a minimum (westerly) interior side yard of 1.71 m.
5	Table 6.3.1 (Row 9, Column RL1) The maximum dwelling depth shall be 20.0 m.	To permit a maximum dwelling depth of 42.52 m.
6	Section 6.4.2 a) (Row RL1, Column 3) The maximum lot coverage shall be 25% (690.59 m2) where the detached dwelling is greater than 7.0 metres in height; ( Lot area is 2762.36 m2).	To permit the maximum lot coverage to be 31.79% (878.09 m2) for the detached dwelling which is greater than 7.0 metres in height.
7	Section 6.5.2 c) The maximum height for any accessory building or structure shall be 4.0 metres measured from grade.	To permit a maximum height for the accessory building to be 5.28 metres measured from grade.

7At the Hearing of the Application, the Town Planning Staff presented a report with the recommendation that the variances being sought be denied. The COA accepted the recommendation and denied the Application in its entirety.

8The Applicants filed this Appeal to the Tribunal on November 15, 2022.

TERMS OF THE PROPOSED SETTLEMENT

9The terms of the settlement are the approval of seven variances as requested in an Amended Application, as follows:

(i) Variance #1: To permit the maximum width of the driveway to be 15.75 metres, whereas the maximum width of the driveway of 9 metres is permitted for a lot having a lot frontage equal to or greater than 18.0 metres.

(ii) Variance #2: To permit a maximum total floor area for a private garage to be 137.56 square metres, whereas 56.0 square metres is permitted.

(iii) Variance #3: To permit an easterly interior side-yard setback of 2.69 metres, whereas 4.2 metres is permitted.

(iv) Variance #4: To permit a westerly interior side-yard setback of 1.71 metres, whereas 4.2 metres is permitted.

(v) Variance #5: To permit a maximum dwelling depth of 42.52 metres whereas, 20.0 metres is permitted.

(vi) Variance #6: To permit a maximum lot coverage of 31.67%, whereas 25% is permitted.

(vii) Variance #7: To permit a maximum height of 4.95 metres for an accessory building, whereas 4.0 metres is permitted.

10Conditions to which the approval will be subject:

(a) That the dwelling be constructed in general accordance with the site plan, plans and elevation drawings marked as Exhibit 5 and Exhibit 6 on this Hearing;

(b) That the approval expires two (2) years from the date of the Decision if a building permit has not been issued for the proposed construction; and

(c) That the owner be required to enter into a minor variance agreement with respect to the preparation of a Landscape Plan and Drainage Plan, which will include a requirement for the posting of securities.

EVIDENCE IN SUPPORT OF THE PROPOSED SETLEMENT

11The Tribunal heard evidence in support of the proposed Settlement from the Appellants’ Professional Planner, Stephanie Matveeva, RPP, who was qualified by the Tribunal to provide opinion evidence in the area of land use planning.

12The following documents were filed by counsel for the Appellants and entered as Exhibits:

Exhibit 1 Curriculum Vitae of Stephanie Matveeva;

Exhibit 2 Acknowledgement of Expert’s Duty of Ms. Matveeva;

Exhibit 3 Affidavit of Ms. Matveeva;

Exhibit 4 Appellants’ Document Book;

Exhibit 5 Revised Site Plan dated February 2023;

Exhibit 6 Plans and Elevation Drawings.

13At the commencement of the Hearing, the Tribunal was advised that the Application had been amended with respect to the requested Variances #6 and #7 and the Tribunal was asked to accept an Amended Application, on consent.

14With respect to Variance #6, the variance being requested respecting total lot coverage was amended from 31.79% to 31.67%.

15With respect Variance #7, the variance being requested respecting the maximum height for an accessory structure, was amended from 5.28 metres to 4.95 metres.

16As the Appellants are seeking reduced variances in the Amended Application, and as this request is being made with the consent of the Town, the Tribunal finds that no further notice is required, and as provided by Section 45 (18.1.1) of the Act, the Tribunal accepts and will proceed upon the basis of the Amended Application.

LEGISLATIVE TESTS

17An application for a minor variance must satisfy all four tests set out under Section 45(1) of the Act, namely that the requested variance:

(i) Maintain the general intent and purpose of the Official Plan (the “OP”);

(ii) Maintain the general intent and purpose of the ZBL;

(iii) Is desirable for the appropriate development or use of the land, building or structure, and;

(iv) Is minor in nature.

18An appeal pursuant to s. 45 of the Act is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is incumbent upon the Applicant/Appellant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard for matters of provincial interest as set out in s. 2 of the Act and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) of the Act, and conform with the Growth Plan for the Greater Golden Horseshoe, 2020 (“GPGGH”).

CULTURAL HERITAGE

19As described in paragraphs 32 to 41 of her Affidavit, and described by Ms. Matveeva in her evidence, the Subject Lands are improved with a Part IV designated heritage resource, and are designated under Section 29, Part IV of the Ontario Heritage Act as a property of historical, architectural, and contextual value and interest by By-law 1993-023. The Applicants obtained and filed a Heritage Impact Assessment (“HIA”) prepared by Letourneau Heritage Consulting (“LHC”).

20Ms. Matveeva explained, as outlined in the HIA, that the Subject Lands were found to be improved with a circa 1886 farmhouse, a circa 1910 sunroom addition, and later additions, including a rear addition, a detached private garage, an accessory pool house, and a detached, accessory shed. The HIA included an analysis of the proposed alterations to the Subject Property, an evaluation of the proposed alterations with respect to the applicable heritage planning legislation and policy and also provided mitigation measures to lessen or avoid adverse impacts to the heritage resource.

21Ms. Matveeva explained that based on foregoing, the HIA provides a series of recommendations, and that overall, it was determined that the proposed development, would be consistent with the applicable heritage planning legislation and policy. In addition, Ms. Matveeva advised that potential adverse impacts could be effectively mitigated through project planning and implementation, to which the Appellants have agreed.

22As related in paragraph 40 of Ms. Matveeva’s Affidavit, following the Appeal of the Application, a Heritage Permit Application was considered by the Oakville Heritage Advisory Committee on December 13, 2022, and the Oakville Heritage Advisory Committee recommended approval of the Heritage Permit, subject to the conditions outlined by Town Staff. Council approved the Heritage Permit on January 23, 2023, and the Appellants have agreed to all conditions.

23Referring to the granting of the Heritage Permit, it is Ms. Matveeva’s opinion that the proposal in the Amended Application will provide for a contextually appropriate development, which will conform to the heritage policies of the Town’s Official Plan and will be appropriate from a heritage planning perspective.

PLANNING ACT – MATTERS OF PROVINCIAL INTEREST

24Section 2 of the Act requires that the Tribunal, in carrying out its responsibilities, has regard for matters of Provincial interest. It was the opinion of Ms. Matveeva as set out in paragraph 43 to 44 of her Affidavit, that the proposed variances have sufficient regard for matters of Provincial interest as set out in Sub-sections 2(a), 2(f), 2(i) and 2(p) of the Act.

PROVINCIAL POLICY STATEMENT, 2020 (“PPS”)

25It is the opinion of Ms. Matveeva as set out in paragraphs 40 to 48 of her Affidavit as referred to in her evidence, that the proposal in the Amended Application (“the Proposal”) is consistent with the PPS, as it meets or exceeds the following policies:

(i) Section 1.1.1.e – the Proposal will facilitate development in a compact form, while maximizing existing under-utilized lands in a Built-Up Area;

(ii) Section 1.1.1.3 – the Proposal will be constructed in a Settlement Area, in compact form and makes efficient use of a lot on full municipal services with access to existing transit and infrastructure;

(iii) Section 1.1.3.3 – The Proposal will provide for a gentle form of intensification which fulfills the objectives of appropriate development standards;

(iv) Section 1.1.1e – The Proposal will support the retention of a distinctive sense of place and the retention of a built heritage resource;

(v) Section 2.6.1 – The Proposal will provide for the conservation, retention and sensitive of a designated heritage resource.

A PLACE TO GROW: GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE, 2020 (“GPGGH”)

26To the extent its policies are engaged by the proposal in the Application, it was the stated opinion of Ms. Matveeva as also set out in paragraph 49 of her Affidavit, that the Proposal conforms with the Growth Plan for the GPGGH, and in particular with the following:

(i) 1.2.1 The Proposal provides for healthy, liveable and safe communities;

(ii) 2.2.1 The Proposal provides for the management of growth by directing growth to Settlement Areas

(iii) 2.2.2.3 The Proposal is a gentle form of intensification within the delineated built-up area

(iv) 4.2.7 The Proposal will conserve and provide for the wise management of a Cultural Heritage Resource.

HALTON REGION OFFICIAL PLAN (“HROP”)

27It is the opinion of Ms. Matveeva as set out in paragraph 50 of her Affidavit and referred to in her evidence, that there are no applicable Site-Specific polices that are relevant to the Subject Property, and that, to the extent that its policies are engaged, the Proposal conforms to the policies of the HROP.

LIVEABLE OAKVILLE PLAN (“LOP”)

28It is the opinion of Ms. Matveeva, set out in paragraphs 55 to 60 of her Affidavit, and referred to in her evidence, that the Proposal conforms to the LOP as the Subject Property is within the Urban Area Lands within the Residential Area component of the Town’s Structure, and are designated Low-Density Residential, where accessory structures are permitted.

TOWN OF OAKVILLE ZONING BY-LAW 2014-014 (“ZBL”)

29The ZBL is By-law 2014-014 and the Subject Property is zoned “Residential Low Density, Mature Neighbourhoods Overlay (RL1-0)”. It is Ms. Matveeva’s opinion that the in-effect zoning reflects the neighbourhood’s low-rise, low-density, eclectic residential character, and that detached dwellings and accessory structures are a permitted use.

PLANNING OPINION

30Ms. Matveeva concluded her evidence by providing the Tribunal with her opinion that:

(i) the Application is consistent with the policies of the Provincial Policy Statement, 2020 and conforms to the policies of A Place to Grow, 2020;

(ii) the Application conforms to the Halton Regional Official Plan and the Livable Oakville Plan which collectively encourage low-density, low-rise residential growth in the Urban Area;

(iii) the Application complies with the Town of Oakville Zoning By-law 2014 – 014, as amended;

(iv) the Application meets the criteria of Section 45(1) of the Act;

(v) that the requested variances, both collectively and individually, represent good planning and are in the public interest.

ANALYSIS

General Intent and Purpose of the LOP

31The Tribunal accepts the evidence of Ms. Matveeva and finds that the proposed development conforms with the general intent and purpose of the LOP which serves to protect and reinforce the existing neighbourhood character by introducing a built form that is complimentary to and consistent with those found in the surrounding neighbourhood. The Tribunal accepts Ms. Matveeva’s opinion evidence and agrees that the Proposal will maintain the prevailing building type and will maintain a scale, height, massing and architectural character of development that is consistent with built forms in the surrounding area. The Tribunal agrees that the Proposal will also retain a designated heritage resource, which is located outside of a Heritage Conservation District, and will maintain the Subject Property’s existing pattern of setbacks and the driveway configuration and circulation patterns. Overall, the proposed development will not alter the home’s streetscape character or presence on the street.

32The Tribunal finds that the Proposal conforms with the cultural heritage policy objectives of the LOP as the proposed development will maintain and preserve a designated heritage resource. Furthermore, appropriate measures to ensure the appropriate conservation of the resource will be provided through the conditions of the Heritage Permit. Based on the above the Tribunal accepts the opinion evidence of Ms. Matveeva and finds that the Proposal is appropriate and will provide for the sensitive integration of a designated heritage resource.

33The Tribunal finds that the Proposal conforms with the landscaping policy objectives of the LOP as the proposed development provides for contextually appropriate replacement plantings for the vegetation to be removed, and the Tribunal agrees that, when considered collectively and individually, the requested variances meet the general intent and purpose of the LOP.

General Intent and Purpose of the Zoning By-Law 2014-14 (“ZBL”)

34There are a total of seven (7) variances requested in the Amended Application.

35The first variance is respecting the prescribed maximum driveway width of 9.0 metres. The requested variance is to allow the existing driveway of 15.75 metres. No changes to the existing driveway are proposed and this variance would simply bring the driveway into conformity. The Tribunal finds that the requested variance is appropriate and does not result in any adverse impacts.

36The second variance is respecting the prescribed maximum floor area of 56.0 square metres for a private garage. The variance requested will allow a floor area of 137.56 square metres. The Tribunal finds that the requested variance is appropriate and does not result in any adverse impacts.

37The general purpose and intent of the private garage area regulations is to ensure that an appropriate structure is provided on the lot and to prevent the garage from being a visually dominant feature of the dwelling. The Tribunal finds that the altered private garage provides for a sensitively designed detached accessory garage, and for a built form, massing, scale and architectural materials, that respects the established character of the Subject Property and surrounding neighbourhood, and which will remain subordinate to the heritage home. The Tribunal therefore finds that the proposed garage is in keeping with the general intent and purpose of the ZBL.

38The two variances respecting the side yard setbacks are technical in nature as the requested variances reflect the existing side yard conditions. The variances requested are a reduced east side yard setback of 2.68 metres, and a reduced west side yard setback of 1.71 metres. The Tribunal finds that both requested variances will result in an appropriate built form and will not cause any privacy concerns to the adjacent properties. The Tribunal therefore finds that both side yard variances maintain the general intent and purpose of the ZBL.

39The requested variance concerning building depth is for a permitted building depth of 42.52 metres whereas the maximum prescribed building depth is 20.0 metres. In view of the presence, and retention, of the designated heritage resource on the Subject Property, the proposed development includes a rear addition to provide additional living space. The requested permission for an increased building depth will facilitate an appropriate built form. Overall, the proposed altered dwelling is proportional to the Subject Property’s unique lot configuration. The altered dwelling will be visually screened by privacy fences along the neighbouring property lines and landscaped open spaces, which will collectively eliminate overlook and privacy concerns. The Tribunal finds that the requested building depth is reflective of the unique circumstances of the Subject Property, is appropriate, and is in keeping with the general intent and purpose of the ZBL.

40The variance requested concerning total lot coverage is for a coverage of 31.67% whereas the prescribed maximum lot coverage is 25%. The general intent and purpose of lot coverage regulations is to ensure that a dwelling’s overall scale and massing is appropriate. The ZBL requires that the floor area of covered porches, covered breezeways and walkways, large eave overhangs and accessory structures be included in the calculation of lot coverage. This results in situations where proposed lot coverage is elevated. Such is the case with the Subject Property, as 13.3% of the requested lot coverage is contained in the existing front covered porch, the existing and proposed garage, the eave overhangs, the rear covered porch, covered breezeway and pool house. The Tribunal therefore finds that the requested lot coverage is appropriate, maintains an appropriate built form, scale and massing, and is in keeping with the general intent and purpose of the ZBL.

41The last variance is required to facilitate a new rear yard accessory pool house and requests a height from grade of 4.95 metres whereas the maximum prescribed height is 4.0 metres. The Tribunal heard that the proposed pool house structure will be at a distance from the altered dwelling and will be located in the rear yard. Accordingly, the pool house is well setback from the streetscape, with the result that the structure and overall appearance and mass will be imperceptible from the Lakeshore Road East streetscape. The Tribunal therefore finds that the requested increase in the accessory structure building height is reasonable, is complimentary in terms of form, mass, scale and architectural features to the altered dwelling, and is in keeping with the general purpose and intent of the ZBL.

Desirable for the Appropriate Development or Use of the Land

42The evidence provided by Ms. Matveeva demonstrates that the requested variances will allow for modest and appropriate residential intensification development to occur, which will be sensitive and contextually appropriate for the Town, the neighbourhood and the Subject Property. The Tribunal therefore finds that the Proposal is desirable for the appropriate development and use of the land, building and structure.

Minor in Nature

43Ms. Matveeva stated her opinion that the requested variances are minor in nature. The Tribunal agrees. The requested variances, both individually and cumulatively, are minor in nature, and the requested variances will not have any undue adverse impact on neighbouring properties. The Tribunal notes that the requested variances allow for the retention of the existing heritage dwelling, while allowing an expansion to occur that is both complimentary and useful to the owners. The requested variances will facilitate a development that is both compatible and complimentary to the Subject Property and the surrounding neighbourhood. The Proposal meets the general intent and purpose of the OP and the ZBL. The Proposal has taken into account the possibility of shadowing and privacy issues. The redesign specifically of the accessory pool house shows the intent of the Appellants to build an appropriate form that will be complimentary to the neighbourhood.

44In conclusion, Ms. Matveeva provided her opinion that the Proposal is consistent with the PPS, and conforms to the GPGGH. The Proposal also conforms to the ROP, the LOP and the ZBL. The Proposal meets all the tests as set out in s. 45(1) of the Act.

CONCLUSION

45The Tribunal accepts the uncontested expert planning evidence and opinions of Ms. Matveeva. The Tribunal finds that the Proposal has regard for matters of Provincial interest, is consistent with the PPS, and conforms to the GGHGP and the ROP.

46The Tribunal finds that the Proposal meets the general intent and purpose of the LOP, meets the general intent and purpose of the ZBL, is a desirable and appropriate use of the lands, and is minor in nature.

47The Tribunal finds that the requested variances, both collectively and individually, represent good planning and are in the public interest.

ORDER

48The Tribunal having been asked to accept and consider the Amended Application, on consent, and the Tribunal having determined as required by Subsection 45(18.1.1.) of the Act that no further notice is required as the amendment to the original Application is minor;

49THE TRIBUNAL ORDERS that the Appeal is allowed and the Amended Application approved, and the variances to Zoning By-law 2014-014 as listed in Appendix A are approved, subject to the following conditions:

a) That the dwelling be constructed in general accordance with the site plan, plans and elevation drawings, as submitted and marked as Exhibit 5 and Exhibit 6;

b) That the approval expires two (2) years from the date of this Decision if a building permit has not been issued for the proposed construction; and

c) That the owners be required to enter into a minor variance agreement with the Town for the preparation of a Landscape Plan, and Drainage Plan which will include a requirement for the posting of securities.

“Robert G. Ackerman”

Robert G. ackerman

member

“s. deBoer”

s. deBOER

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.

APPENDIX A

No.	Zoning By-law Regulation	Variance Request
1	Section 5.8.2 c) iii) The maximum width of a driveway shall be 9.0 metres for a lot having a lot frontage equal to or greater than 18.0 metres.	To permit the maximum width of the driveway to be 15.75 metres for a lot having a lot frontage equal to or greater than 18.0 metres.
2	Section 5.8.6 c) For lots located within the Residential Low (RL1) Zone the maximum total floor area for a private garage shall be 56.0 square metres.	To permit the maximum total floor area for the private garage to be 137.56 square metres.
3	Table 6.3.1 (Row 5, Column RL1) The minimum interior side yard shall be 4.2 m.	To permit a minimum (easterly) interior side yard of 2.69 m.
4	Table 6.3.1 (Row 5, Column RL1) The minimum interior side yard shall be 4.2 m.	To permit a minimum (westerly) interior side yard of 1.71 m.
5	Table 6.3.1 (Row 9, Column RL1) The maximum dwelling depth shall be 20.0 m.	To permit a maximum dwelling depth of 42.52 m.
6	Section 6.4.2 a) (Row RL1, Column 3) The maximum lot coverage shall be 25% (690.59 m2) where the detached dwelling is greater than 7.0 metres in height; ( Lot area is 2762.36 m2).	To permit the maximum lot coverage to be 31.67% (878.09 m2) for the detached dwelling which is greater than 7.0 metres in height.
7	Section 6.5.2 c) The maximum height for any accessory building or structure shall be 4.0 metres measured from grade.	To permit a maximum height for the accessory building to be 4.95 metres measured from grade.