Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 29, 2023

CASE NO(S).: OLT-23-000023

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

Applicant and Appellant: Frank Scremin

Subject: Minor Variance

Description: To permit a canopy encroachment into the rear yard

Reference Number: A46-22

Property Address: 57 Gage Street

Municipality/UT: Grimsby/Niagara

OLT Case No.: OLT-23-000023

OLT Lead Case No.: OLT-23-000023

OLT Case Name: Scremin v. Grimsby (Town)

Heard: April 24, 2023 by Video Hearing

APPEARANCES:

Parties

Frank Scremin

Self-represented

MEMORANDUM OF DECISION BY ASTRID J. CLOS AND ORDER OF THE TRIBUNAL

1The Tribunal convened a Merit Hearing (“Hearing”) with respect to an appeal brought pursuant to s. 45(12) of the Planning Act (“Act”) by Frank Scremin (“Appellant”) for a property municipally addressed as 57 Gage Street (“Subject Property”) located in the Town of Grimsby (“Town”) due to the refusal of Minor Variance application A46-22 (“MV”) by the Committee of Adjustment (“COA”).

2The purpose of the MV is to permit a maximum encroachment of 6.215 m into the rear yard for a canopy (covered porch), where a maximum encroachment of 1.5 m is permitted within the Residential Detached 2 (RD2) Zone, within the Town of Grimsby Zoning By-law No. 14-45 (“ZBL”).

3The Town’s Planning staff presented a Memorandum dated December 20, 2022 in support of the MV to the COA. The Memorandum is included in the Municipal Record which was entered as Exhibit 2. Excerpts from the Memorandum are produced below:

RECOMMENDATION MINOR VARIANCE FILE A46-22

The Planning Division recommends approval of MV for the following reasons:

Do the variances meet the intent of the Official Plan?

The subject property is designated Low Density Residential Area in the Official Plan. Single-detached dwellings are a permitted use in the Low Density Residential Area designation.

The property of 57 Gage Street is located in a stable residential neighbourhood. A key objective of the Official Plan is to ensure that development within stable residential neighbourhoods reflects and fits into the established character of the neighbourhood. Under Section 3.4.2.3 of the Official Plan, “All Low Density Residential development shall be compatible with adjacent properties and shall respect the character and image of the neighbourhood”. Under Section 3.4.7.2 a) of the Official Plan, “New development shall be compatible with adjacent and neighbouring built-form by ensuring that the siting and massing of new buildings does not result in undue adverse impacts on adjacent properties particularly in regard to adequate privacy conditions for residential buildings and their outdoor amenity areas”.

Planning staff note that Gage Street consists primarily of single detached residential properties with similar rear yard conditions. The overall impact to the character of the stable residential neighbourhood would be minimal as the existing fencing and landscaping will continue to act as a buffer between the structure and neighbouring properties. The proposed canopy is compatible with the surrounding land uses.

Planning staff are of the opinion that the proposed minor variance meets the intent of the Official Plan.

Do the variances meet the intent of the Zoning By-Law?

The subject property is zoned Residential Detached 2 (RD2), and subject to site-specific policy 191 in The Town of Grimsby Zoning By-law No. 14-45, as amended.

The applicant is proposing a minor variance to permit a canopy encroachment of 6.215 meters into the required rear yard, whereas a maximum canopy encroachment of 1.5 meters is permitted.

The intent of the maximum canopy encroachment into the rear yard requirement is to ensure there is adequate room for outdoor amenity space in the rear yard, while helping to mitigate potential privacy impacts. Staff are of the opinion that a canopy encroachment will not result in a reduction of amenity space in the rear yard, as the structure will continue to be used as part of the amenity space. As for privacy, the east and west (interior side yard) property lines are bounded by a fence, and the south (rear) is lined with trees. Planning Staff are of the opinion that the existing buffering will assist in maintaining the existing privacy conditions. Staff are of the opinion that the increased canopy encroachment is consistent with the intent of the regulation.

Planning Staff are of the opinion that the proposed minor variance meets the intent of the Town of Grimsby Zoning By-law 14-45, as amended.

Are the variances desirable for the appropriate development or use of the land?

Planning staff are of the opinion that the proposed variances fit within the established character of the neighbourhood. The variances are considered desirable for the appropriate development of the land by Planning Staff.

Is the variance considered minor?

Planning Staff are of the opinion that the variance proposed to permit a canopy encroachment of 6.215 meters, whereas a maximum canopy encroachment of 1.5 meters is permitted, for the reasons above, are appropriate and considered minor in the context of 57 Gage Street.

4The COA denied the MV application at the meeting held on December 20, 2022.

5The Applicant subsequently appealed the decision of the COA.

6Counsel for the Town confirmed prior to the hearing that they do not intend to participate in the hearing and were not in attendance.

PARTY/PARTICIPANT STATUS REQUESTS

7In response to the notice, a Participant request was received in writing from Lisa Marleau the abutting neighbour at 55 Gage Street. The Tribunal was satisfied that Lisa Marleau has a demonstrated interest in the matter, participated in the process and on consent was granted Participant status.

8Ms. Marleau provided a Participant Statement which included a number of concerns including, but not limited to, the loss of privacy in her backyard amenity space if the elevated covered porch was to be constructed.

9No request for Party status was received.

LEGISLATIVE TESTS

10The Tribunal in carrying out their responsibilities shall have regard to, among other matters, matters of provincial interest, as set out in s.2 of the Planning Act.

11When making a decision relating to a planning matter, the Tribunal shall have regard to any decision made by a municipal council or approval authority and any information and material considered by a council or approval authority in making the decision, as set out in s. 2.1 (1) of the Planning Act.

12A decision of the Tribunal in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) and shall conform with or shall not conflict with the Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”), as set out in s. 3(5) of the Planning Act.

13An appeal to the Tribunal pursuant to s. 45 of the Planning Act is a hearing de novo. The Tribunal may authorize such minor variance from the provisions of the by-law as in its opinion meets each of the tests set out in s. 45(1) of the Act. The four tests under s. 45(1) of the Act require the applicant to satisfy the Tribunal that each variance:

1. Maintains the general intent and purpose of the official plan;

2. Maintains the general intent and purpose of the zoning by-law;

3. Is desirable for the appropriate development or use of the land building or Structure; and

4. Is minor.

EVIDENCE

14The Appellant called Devon Kleinjan, retained by him to design and construct the proposed covered porch. Mr. Kleinjan provided Visual Evidence which was entered as Exhibit 1.

15Mr. Kleinjan advised that after the MV was presented to the COA the owner made two changes to the proposal in order to address the privacy concerns of the neighbouring property owner. He noted that these changes are in addition to the existing fence and landscaping located in the east side yard and rear yard of the Subject Property.

16The first change presented by Mr. Kleinjan was the addition of a wood privacy screen now proposed to be included in the design of the covered porch. The privacy screen is to be located at the corner of the existing home and extend for approximately 3.5 m along the higher portion of the porch ending at the steps down to the lower portion of the porch.

17The second change presented by Mr. Kleinjan was the planting of new tree stock within the east side yard along the lower portion of the porch ending at the existing drainage easement located at the rear of the lot.

18Mr. Kleinjan noted that the wood privacy screen is not proposed to be provided for the lower portion of the porch because the existing fence in his opinion would provide a visual screen and would be supplemented by both the existing and proposed additional landscaping.

19Mr. Kleinjan confirmed that no part of the covered porch, including any part of the roof overhang, will encroach within the registered 1.5 m wide easement located along the rear lot line of the Subject Property.

20Mr. Kleinjan stated that the proposed covered porch could be constructed in compliance with the ZBL without the need for a MV if it was not attached to the house. He further stated that attaching the covered porch to the dwelling will make it more accessible, convenient, and usable and is, therefore, the preference of his client.

21The Tribunal qualified one planning witness, Walter Basic to provide expert opinion evidence in the discipline of land use planning. Mr. Basic appeared under summons by the Appellant. The Memorandum authored by Mr. Basic to the COA is included in the Municipal Record entered as Exhibit 2.

22To assist the Tribunal, Mr. Basic provided two conditions which could be imposed in the Order. However, in his evidence, Mr. Basic was very clear that in his opinion these conditions are not a requirement for the four tests for a MV to be met.

Condition 1. That a visual screen be affixed to the underside of the roof that covers the upper half of the opening of the canopy structure extending south from the south easterly corner of the existing dwelling approximately 3.5 metres.

Condition 2. That landscape screening forming a visual barrier be planted along side and parallel to the easterly side lot line from a point approximately 3.5 metres south of the existing south easterly corner of the dwelling to a point 1.5 metres north of the south limit of the easterly lot line.

Planning Act

23The Tribunal heard from Mr. Basic that in forming his planning opinion he did not have regard for the applicable matters of provincial interest under Section 2 of the Planning Act.

Provincial Policy Statement

24The Tribunal was advised by Mr. Basic that in forming his planning opinion he did not consider the consistency of the MV with the Provincial Policy Statement nor the conformity of the MV with any applicable provincial plans.

Four Tests for a Minor Variance

25Mr. Basic reviewed his analysis of the four tests for a minor variance as outlined in his Memorandum to the COA as included within paragraph [3] of this decision. He advised that his opinion remains consistent in that the four tests are met for this MV and that the MV should be approved.

26Mr. Basic advised that an identical covered porch, not attached to the dwelling, would be permitted by s. 4.18 of the Town’s Zoning By-law without the need for a MV. He continued that the proposed covered porch is less than the maximum permitted height for a detached building or structure. In addition, the proposed side yard and rear yard setbacks exceed the minimum setbacks required for a detached building or structure in the ZBL.

27Mr. Basic stated that compatibility, as defined in the OP, is established by meeting the setbacks in the ZBL. Mr. Basic opined that because the proposed covered porch exceeds the minimum setbacks required by the ZBL for a detached structure the MV is, therefore, compatible. The OP excerpt is below.

Section 3.4.7.2 a), “New development shall be compatible with adjacent and neighbouring built-form by ensuring that the siting and massing of new buildings does not result in undue adverse impacts on adjacent properties particularly in regard to adequate privacy conditions for residential buildings and their outdoor amenity areas”.

TRIBUNAL ANALYSIS AND FINDINGS

28While no specific planning evidence was provided with respect to the legislative tests in Sections 2 and 3 of the Planning Act, the Tribunal is satisfied that in this matter, the OP and ZBL, have been established within the context of the provincial planning framework, and accordingly the requisite tests have been satisfactorily addressed through the planning evidence provided in relation to the four tests for a MV.

29The Tribunal accepts, for the most part, the uncontested planning opinion evidence of Mr. Basic and finds that the application meets the four tests for a MV with the inclusion of a condition:

That a visual screen be affixed to the underside of the roof that covers the upper half of the opening of the canopy structure extending south from the south easterly corner of the existing dwelling approximately 3.5 metres.

30The Tribunal finds that the imposition of this condition will appropriately address the definition of compatibility in the OP by ensuring that the siting and massing of the new covered porch does not result in undue adverse impacts on adjacent properties particularly in regard to adequate privacy conditions for residential buildings and their outdoor amenity areas.

31The Panel considered the information available to the CAO and the decision of the CAO when considering its decision.

32The original MV application has not been revised and remains the same.

33The Tribunal finds that the MV satisfies the required legislative tests with reasons that include the following:

a. The proposed covered porch attached to the residential dwelling has a height less than the maximum height permitted in the ZBL for a building detached from the dwelling,

b. The proposed covered porch attached to the residential dwelling has a side and rear yard setback less than the maximum required in the ZBL for a building detached from the dwelling,

c. The entire covered porch will not encroach within the 1.5 m wide easement located along the rear lot line.

d. The required privacy screen imposed by condition will ensure that the request authorized by the MV is compatible.

34The Tribunal is satisfied that the condition included in the Order related to the MV is considered advisable pursuant to Subsection 45(9) of the Planning Act.

ORDER

35THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 14-45 is authorized subject to the following condition.

That a visual screen be affixed to the underside of the roof that covers the upper half of the opening of the canopy structure extending south from the south easterly corner of the existing dwelling approximately 3.5 metres.

36AND THE TRIBUNAL ORDERS that pursuant to subsection 45(9) of the Planning Act, the Town of Grimsby shall have the authority to clear the condition of the minor variance. In the event that there are any difficulties implementing the condition of the minor variance, the Tribunal may be spoken to.

“Astrid J. Clos”

ASTRID J. CLOS

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.