Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 26, 2023
CASE NO(S).: OLT-23-000110
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Curtis Deley
Subject: Minor Variance
Description: To permit conversion of an existing accessory building located on a residential lot as secondary dwelling unit
Reference Number: A59/2022
Property Address: 734 Oak Avenue
Municipality/UT: Sarnia/Lambton
OLT Case No.: OLT-23-000110
OLT Lead Case No.: OLT-23-000110
OLT Case Name: Deley v. Sarnia (City)
Heard: May 15, 2023 by video hearing
APPEARANCES:
Parties
Curtis Deley and Annette Clark ("Applicant")
Counsel/Representative*
Self-Represented*
Parties
City of Sarnia ("City")
Counsel/Representative*
Did not appear
MEMORANDUM OF ORAL DECISION DELIVERED BY KURTIS SMITH ON MAY 15, 2023 AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter before the Tribunal involves an application for Minor Variance pursuant to s. 45(12) of the Planning Act ("Act") with respect to the property municipally known as 734 Oak Avenue ("Subject Property"), in the City.
2The Applicant sought two variances:
a. To permit an accessory building to be used as a secondary dwelling unit.
b. To permit a secondary dwelling unit to be located within an accessory building in an Urban Residential 1 (UR1) Zone.
3No other person sought party or participant status.
4Prior to the hearing, the City informed the Tribunal that it was not participating in the matter unless summoned.
BACKGROUND
5The Applicant explained to the Tribunal that they wish to convert the existing garage located in the rear yard of the Subject Property into a secondary dwelling unit. The Subject Property is zoned UR1 in the City’s Zoning By-law No 85-2002 ("ZBL"), which permits single detached dwellings, secondary dwellings units within the main dwelling, and accessory buildings and uses.
6As stated above, two variances are needed to permit the conversion of the existing garage (accessory building) into a secondary unit. The staff recommendation presented to the Committee of Adjustment ("COA") on January 17, 2023 was favourable to the Applicant subject to two conditions:
a. That a minimum 1.2 metre wide unobstructed path of travel be provided from the street or driveway.
b. The property is to be serviced using existing storm, sanitary and water service. Each respective service shall be permitted a single connection point to the existing municipal infrastructure at the property line.
7The COA deferred the application until a time where the ZBL is more defined with regards to secondary dwelling units on private properties. The deferral prompted the Applicant to appeal the failure of the City to make a decision on the application.
JURISDICTION
8Although the COA did not make a decision pursuant to s. 45(12) of the Act against which an appeal may be filed by the Applicant, the Tribunal is satisfied that this appeal may proceed to a hearing on the merits. The elapsed time between the non-decision and the hearing of this appeal, and the City’s absence in this appeal hearing, leads the Tribunal to find that the absence of a decision by the COA amounts to a refusal of the application, and thereby enables the filing of an appeal.
9With no legal counsel present at this hearing, the Tribunal received no positions or case law regarding the validity of this appeal. However, the Tribunal notes by way of example, that its finding to hear this appeal of a non-decision of the CAO is consistent with the Tribunal’s findings in Evergreen Environmental Inc. v Oshawa (City), 2020 CanLII 104961.
10The Tribunal also notes that recent amendments to the Planning Act s. 35.1 appear to negate a ZBL provision that prohibits a residential unit in a structure ancillary to a dwelling. Again, in the absence of legal submissions on the relevance of this provision to this case, the Tribunal will assess these minor variances against the existing ZBL.
EVIDENCE
11The Applicant did not call on any witnesses or summons City staff. As a result, the Applicant relied upon the submissions of the municipal record, namely the staff report dated January 17, 2023. The Tribunal entered the Municipal Record into evidence as Exhibit 1, and the Applicant’s Document Book as Exhibit 2.
ANALYSIS AND FINDINGS
12An appeal pursuant to s. 45 of the Act is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met. The variance tests are as follows:
i. maintains the general intent and purpose of the Official Plan ("OP");
ii. maintains the general intent and purpose of the ZBL;
iii. is minor in nature; and
iv. is desirable for the appropriate development or use of the land, building or structure.
Minor Variances
13The Tribunal finds that, based on the uncontested evidence, the four tests at s. 45(1) of the Act have been met and the appeal should be allowed for the following reasons.
Official Plan
14The Tribunal is satisfied that the proposed variances meet the intent and purpose of the OP. The subject property is within an urban residential designation which is well established with low rise residential dwellings. New development is to be in keeping with the existing and/or planned physical character of the neighbourhood. The proposed secondary unit will be contained within an established accessory building.
Zoning By-law
15The Tribunal also finds that the proposed variances meet the intent and purpose of the ZBL. Secondary units are currently permitted within UR1 zone within single detached dwellings but are not permitted in a detached structure. However, in the minutes of the COA found in Exhibit 1, the City is currently in the process of updating their ZBL to incorporate the amendments arising from Bill 109 and Bill 23 which will ultimately permit the creation of additional residential units within detached structures. Moreover, the staff report states the intent of the secondary unit provisions is to mitigate the impact of the prevailing structure on the neighbourhood by keeping the second unit in an existing dwelling. The Tribunal is satisfied that the proposed secondary unit will be contained within an existing accessory structure, which complies with the regulations of accessory buildings which will have little to no impact on the surrounding neighbourhood.
Desirable
16The Tribunal finds that the variances to create a secondary unit in the accessory building is desirable for the area. The surrounding neighbourhood is comprised of single detached dwellings, with many of them having detached accessory structures similar in size to the existing structure on the Subject Property. As of right, secondary units are permitted in the main dwelling on the Subject Property, and the proposed detached structure would have no greater impact on the neighbourhood as it is being proposed in an existing structure.
Minor
17The Tribunal is satisfied that the variances sought to create the secondary unit in the existing accessory structure are minor in nature. Furthermore, the Tribunal finds that the proposed secondary unit will not cause any additional impacts on the neighbourhood that a secondary unit contained within a dwelling could create. The proposal would maintain the single detached nature of the surrounding neighbourhood while providing low-density intensification that is nearly unnoticeable from the street.
Proposed Conditions
18The Tribunal finds that the two conditions presented in the staff report are reasonable and further support the proposed secondary unit.
ORDER
19THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law 85-2002 in the City of Sarnia are authorized subject to the following conditions:
a. That a minimum 1.2 metre wide unobstructed path of travel be provided from the street or driveway.
b. The property is to be serviced using existing storm, sanitary and water service. Each respective service shall be permitted a single connection point to the existing municipal infrastructure at the property line.
"Kurtis Smith"
KURTIS SMITH MEMBER
Ontario Land Tribunal
Website: www.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.