Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 04, 2023
CASE NO(S).: OLT-22-004874
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Nicole Mills
Subject: Minor Variance
Description: To permit the combined width of all hard surfaces to be 8.4 m instead of the maximum permitted 5.5 m for an existing driveway
Reference Number: 540-02-A-034/22
Property Address: 3500 Ketelbey Court
Municipality/UT: Burlington/Halton
OLT Case No.: OLT-22-004874
OLT Lead Case No.: OLT-22-004874
OLT Case Name: Mills v. Burlington (City)
Heard: March 21, 2023 via Video Hearing
APPEARANCES:
Parties
Counsel
Nicole Mills ("the Applicant" or "the Appellant")
Self-Represented
City of Burlington ("the City") (the "Municipality")
Blake Hurley
DECISION BY A. CORNACCHIA AND ASTRID J. CLOS AND ORDER OF THE TRIBUNAL
BACKGROUND
1The Appellant appealed the decision of the Committee of Adjustment ("Committee") of the City of Burlington ("City") refusing to authorize a minor variance application ("MV Application") regarding the property municipally known as 3500 Ketelbey Court ("Subject Property"). The application sought permission to widen the driveway beyond the 5.5 metre ("m") width permitted by the Zoning By-law 2020, as amended ("ZB"). The original requested minor variance was:
"To permit the combined width of all hard surfaces to be 8.4 m instead of the maximum permitted 5.5 m for an existing driveway."
2The City's planning staff report recommended that the Committee refuse the application. The Committee followed the staff recommendation and rejected the MV application.
3A hearing was held on March 21, 2023. There were no status requests and no issues identified with notice. Both the City and the Appellant appeared. The City decided to support the MV application. The Applicant engaged Michael Barton ("Mr. Barton"), a registered planner who was qualified as an expert to give evidence in the field of land use planning.
4In response to a question from the Tribunal for clarification regarding the Application the Applicant decided to amend the relief requested to align with the existing condition of the current driveway. The revised minor variance request was:
"To permit the combined width of all hard surfaces to a maximum of 8.4 m at 1.12 m from the front lot line to the existing residential dwelling, and a maximum of 5.97 m at the front lot line, instead of the maximum permitted 5.5 m for an existing driveway."
5The Applicant, with the City's support, requested that the Tribunal permit the identified changes to the MV application and dispense with any additional notice requirement since the application changes are minor. The Tribunal granted this request under section 45 (18.1.1) of the Planning Act ("Act"). The amended variance seeks relief of a lesser significance than that proposed in the original MV Application.
6The appeal of the Committee's decision to the Tribunal requires a hearing de novo of the Minor Variance application. Mr. Barton gave evidence to the Tribunal relating to the applicable tests under the Planning Act. ("Act").
Planning evidence
7Mr. Barton started his testimony with an overview of the property and the Neighbourhood. The Subject Property is a rectangular lot with frontage of approximately 10.2 m on Ketelbey Court and lot area of 385.4 m2. It is currently occupied by a two-storey single detached dwelling with an attached garage. The front yard of the property is partially paved including the existing driveway located along the east side of the Subject Property and a paved area running across the front wall and main entrance of the existing dwelling. The driveway supports parking for three vehicles in a side-by-side configuration. The balance of the area in the front yard west of the driveway and paved area is covered by soft landscaping.
8The existing driveway is 5.97 m wide at the front property line through the boulevard to the municipal road and widens to a maximum of 8.4 m for a distance of 4.34 m to the front porch. The existing municipal tree will continue to be maintained and there will be a small area of soft landscaping in the front yard. The Applicant seeks authorization for the existing driveway on the Subject Property since she received a Notice of By-law Contravention regarding the driveway on September 6, 2021.
9There are numerous examples in the neighbourhood of driveways and paved areas of a similar width and configuration to that found on the Subject Property. They co-exist without adversely impacting neighbouring properties. In Mr. Barton's view, wider driveway configurations beyond what is permitted by the ZB forms part of the neighbourhood character.
10The immediate neighbour at 3502 Ketelbey Court is in closest proximity to the widened driveway area on the Subject Property. A two-storey single detached dwelling is located on this property. It also has a paved driveway leading to an attached garage in conjunction with an additional paved area in front of the main front wall and front entrance of the dwelling, similar to the existing condition on the Subject Property.
SECTION 45(1) OF THE ACT
11The following planning evidence relates to the MV application's compliance with section 45(1) of the Planning Act ("Act").
general intent and purpose of the official plans
12The Halton Region Official Plan is not engaged by the proposed driveway widening. This plan is focused on growth.
13The Subject Property is designated "Residential - Medium Density" on Schedule 'B' (Comprehensive Land Use Plan – Urban Area) of the City of Burlington's Official Plan (1997), as amended, ("OP") as is the balance of the surrounding neighbourhood context. Various provisions from the OP were cited by Mr. Barton which support the conclusion that the widened driveway maintains the intent and purpose of the OP. The most important of these are sections 6.5, 2.5.2 and 2.5.4 of the OP dealing with Design Guideline Policies, and the criteria evaluating proposals for housing intensification and infill development. Compatibility is an important concern for these OP policies. In Mr. Barton's view, the MV application maintains the intent and purpose of the OP since it appropriately addresses the compatibility concern. The current driveway configuration on the Subject Property is compatible with, sympathetic to and consistent with other driveway conditions in the surrounding area and ensure a harmonious street form. The broadened driveway model forms a part of the immediate neighbourhood character and there will be no adverse impact to this character from authorization of the variance.
general intent and purpose of the zoning by-law
14The Subject Property is zoned "Residential Medium Density (RM4)". This zoning category permits single and semi-detached dwellings subject to the applicable performance standards set out in the ZB. This same zoning and performance standards apply to all the properties in the neighbourhood context.
15In Mr. Barton's view, the general intent and purpose of the ZB is to implement the OP policies that he referenced in his evidence. In his view, since compatibility is achieved under the OP by the application, it maintains the intent and purpose of the ZB.
16In response to questions by the Tribunal, Mr. Barton explained that the objective of the hard surface performance standard is to ensure that there is sufficient soft landscaping for drainage purposes and sufficient green space to buffer neighbouring uses. In his view, the relief sought will not negatively impact these objectives and thus continue to maintain the intent and purpose of the ZB.
Minor
17The evidence was that the application is minor in nature. There will be no adverse impact from the proposed driveway expansion on the neighbouring properties, the public realm and the neighbourhood generally since compatibility has been achieved. The tree on the boulevard will be maintained. Spatial distance will be maintained with the neighbouring properties allowing for continued enjoyment of the neighbouring front yards.
DESIRABILITY
18Mr. Barton opined that the broadened driveway is desirable since it will allow for continued use of the property in a manner that is consistent and compatible with the neighbourhood character.
provincial policies
19Mr. Barton reviewed provincial interests under the Act, the Provincial Policy Statement ("PPS") and the Growth Plan for the Greater Golden Horseshoe ("Growth Plan"). He confirmed that these policies are not engaged by the application and that there is nothing in it that is inconsistent with provincial interests or the PPS or the Growth Plan.
20In summary, the Tribunal accepts the evidence of Mr. Barton and finds that the MV Application complies with the requirements of subsection 45(1) of the Act. It is minor, desirable for the continued use of the Subject Property and maintains the general intent and purpose of both the applicable official plans and the ZB. There is nothing of concern related to provincial interests, the PPS or the Growth Plan.
ORDER
21THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law 2020 is authorized.
"A. Cornacchia"
A. CORNACCHIA
MEMBER
"Astrid J. Clos"
ASTRID J. CLOS
MEMBER
Ontario Land Tribunal
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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.