Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 24, 2023

CASE NO(S).: OLT-21-001152

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

Applicant/Appellant: Kimberly Cushing

Subject: Minor Variance

Property Address/Description: 317 Barry Avenue

Variance from By-law: Zoning By-Law 1746

Municipality: Township of Tecumseh

Municipal File No.: A-28-21

OLT Case No.: OLT-21-001152

OLT Lead Case No.: OLT-21-001152

OLT Case Name: Cushing V. Town of Tecumseh

Heard: February 22, 2022 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Kimberley Cushing (“Applicant”)	Shaun Cushing
Town of Tecumseh (“Town”)	Edwin Hooker* Nicholas Harris* (Student at law)

1The Applicant made application for authorization of a minor variance (“Application”) seeking relief from Zoning By-law No. 1746, Subsection 6.1.5, which establishes a maximum total lot coverage of 30 percent (the “Variance”) proposing to construct a 238.7 square meter (“m²”), one-storey residential dwelling resulting in total lot coverage of 38.7 percent on the property located at 317 Barry Avenue in the Town of Tecumseh (“Subject Property”).

2The planning report and recommendations from Planning Staff relevant to the Application are addressed below. The evidence before the Tribunal is that a single resident, Mr. Braun, raised some concerns relating to storm water and drainage, and generally expressed a concern that the proposed dwelling is a “raised” ranch style that is oversized on a small lot that would not be consistent with, or in keeping with the character of, other homes in the area (Pages 85-86, Exhibit 1).

3The Town of Tecumseh Committee of Adjustment (“Committee”) denied the Application on June 4, 2021, and the Applicant then appealed.

4The Applicant appeared, represented by her spouse Shaun Cushing. Other than the basic technical and factual evidence relating to the proposed design and uses and rationale for the proposed size and layout as provided by the Applicant, Mr. Cushing called Mr. Daniel Caster, the contractor and builder of the proposed residence, as his only witness.

5The Town appeared to oppose the Appeal and called, as its witness, Mr. Chad Jeffery a Land Use Planner with the Town. Upon review of Mr. Jeffery’s experience, qualifications and background, and his executed Acknowledgement of Expert’s Duty, the Tribunal qualified Mr. Jeffery to provide expert land use planning evidence.

6The following two documents were made Exhibits to the Hearing:

Exhibit	Document
1	Joint Document Book (16 Tabs)
2	Excerpt – Section 3.18 (Land Use Compatibility) – Town of Tecumseh Official Plan (2 pages)

BACKGROUND, PROPOSED DWELLING AND AREA CONTEXT

7The Variance for the proposed construction on the Subject Property, if authorized, will allow for a one-storey residential bungalow having a lot coverage exceeding the maximum permitted coverage of 30% by approximately nine percent. The dwelling will be 42 feet in width and approximately 69 feet, four inches in depth, varying slightly on each side due to variations in the east-facing street front of the built-form and have a total area footprint size of 2,569 square feet (or 238.7 m²). The lot is not exactly rectangular, with a frontage of 15.2 m (50 feet), a depth of 37.6 m (123.4 feet) on the south boundary and 41.7 m (134.5 feet) on the north boundary. The total lot area of the Subject Property is 616.34 m² (6,634.27 square feet).

8No other variances are required to permit the proposed dwelling. All setbacks will be in compliance and both front and rear setbacks and the structure and lot requirements will comply with the zoning requirements. In particular, the front street setback will be consistent with the setback and streetscape of homes along the west side of Barry Street.

9Mr. Caster explained the background to the proposed design of the one-storey bungalow based on some measure of experience in building some 30 “handicapped homes” in the past for owners requiring accessibility and accommodation. On the subject of constructing homes essentially to support aging-in-place, in this instance, Mr. Caster explained the health concerns of the owner of the proposed dwelling impacting the proposed size and layout. The dwelling is designed as an open concept with widened doors and entrances to accommodate wheelchairs and a sufficient turning radius and to assist with mobility issues that might arise for Ms. Cushing in the future (or any other resident that might occupy the home).

10The unchallenged evidence before the Tribunal from the Applicant and Mr. Caster, with respect to the Application, is that the modestly sized design of the bungalow is such that it will ensure that special mobility and accessibility needs for the occupant are addressed, logically for the health and safety of an occupant, including that of the Applicant herself. To the extent that it is a consideration for the Tribunal, it finds that the “rationale” of constructing the housing form of a “ranch-style” one-floor residential dwelling is, in part, to address the current and future special needs of an accessibility/mobility challenged resident which has been credibly explained.

11As the design plans indicate (page 22 ff of Exhibit 1) the home will be as close to grade as possible to avoid significant elevations, on one level, with unencumbered access, no stairs, with the benefit of an accessible two car garage and a covered deck to the rear. On cross-examination Mr. Caster confirmed that the home would be at the same elevation as the house next door and that without the Variance it would be difficult to construct a dwelling with the necessary accessibility to accommodate an owner’s needs. It was acknowledged that the larger sized home, with the smaller sized lot, directly resulted in the overage on lot coverage.

12With respect to the neighbourhood context, the Tribunal has received the benefit of the overview from Mr. Jeffery as to the lot pattern in the surrounding immediate neighbourhood fronting, and behind the Subject Property, including the various lot sizes. Houses in the area are uniformly single unit dwellings. The lot sizes generally range between 700 m² and 1200 to 1300 m². There are four examples of larger-sized lots in the immediate two-street area of the neighbourhood identified by Mr. Jeffery of: 1,310 m²; 1,545 m²; 1,701 m²; and 1756 m². The Subject Property and the lot to the immediate south, both being original lots on the plan of subdivision and having a smaller lot size of 572 m², are the two smaller lot exceptions in Mr. Jeffery’s defined area for consideration. The property to the south previously owned by the Applicant received the benefit of a minor variance granting a greater lot coverage of 35%.

13The evidence however is that, within a slightly more extended neighbourhood, beyond the limited two streets selected by Mr. Jeffrey, there are some ten lots visible immediately to the east of Barry Avenue, one street over on Michael Drive, having lot sizes equivalent to, or only slightly larger than, the Subject Property and the adjacent lot to the south. There also appear to be, as part of the near-neighbourhood lot pattern, similarly smaller sized lots to the south and on the east side of Barry Street (at approximately 700 m²), and smaller and denser single unit residential development in the subdivisions to the south.

14The Tribunal was not provided with the total lot size of these smaller lots or the benefit of lot coverage information beyond the immediate area immediately north, south, west and east of the Subject Property chosen by Mr. Jeffery. The Applicant has confirmed the existence of these other 50 foot frontage lots in the additional nearby area.

15It is the Tribunal’s view that although this immediate two-street area defined by the Town may indeed represent a small enclave of larger lots, it is clear that the slightly broader neighbourhood is not necessarily comprised of such an equilibrium of larger and more expansive lot dimensions (with resultant lesser lot coverage for similarly sized homes).

16It is the Tribunal’s view that in considering the whole of the evidence, Mr. Jeffrey was unduly restrictive in his examination of only those lots located behind the lots on the west side of Barry Avenue and the lots across the street being the two streets immediately to the west and east of Barry. Mr. Jeffrey provided no supportable basis for restricting the subject neighbourhood area to this limited number of larger lots as it is contained within a broader area containing a varied mix of lot sizes. When examining the limited aerial maps and plans included in the Joint Document Brief there is no reasonable basis for constraining the neighbourhood of the Subject Property only to these immediate lots. There is nothing, upon the usual criteria, relating to spatial features and patterns, geography, streets, boundaries or special character that would exclude those lots to the immediate west and east, and north and south which include numerous 50-foot lots and building footprints that would appear, at first glance, to be not dissimilar to the Subject Property.

17Examining the moderately broader neighbourhood context, it is unreasonable to apply such a narrowly focused lens when considering fit and compatibility of lot patterns and building footprints and built-forms, particularly if this focus must, as the Town argues, be used to consider whether the Variance is Minor. As discussed below, the primary concern of the “potential” for opening the door to larger buildings on smaller lots as the focal point of whether the Variance is Minor may be overly emphasized based upon the limited neighbourhood context and is unsupported as a concern within all of the evidence.

18As the Town’s evidence relating to lot size and coverage was selective the Tribunal is unable to ascertain incidents of average lot coverage and streetscape and patterns beyond the limited views considered in Exhibit 1.

MR. JEFFERY’S WRITTEN PLANNING REPORT – MAY 31, 2021

19Without public input, with public comments not yet considered, the Planning Report prepared by Mr. Jeffery dated May 31, 2021 was that the proposed Variance met the general intent and purpose of both the Official Plan and the Town’s Zoning By-law. Mr. Jeffrey also opined at that time that, due to the relatively small lot size, there was a “rationale” for considering a degree of relief for a greater lot coverage and thus desirable for the appropriate development or use of the land, particularly given the approved variance to 35% lot coverage granted for the adjacent lot to the south.

20Although noting that the proposed dwelling would be fully capable of being built within the permitted building envelope provided for in the zoning performance standards, based on his assessment of a decision of the Ontario Divisional Court, Mr. Jeffery, in his Staff Report, did however note that the proposed Variance might not be minor if there was other undue adverse impact on neighbouring property owners which was “difficult to ascertain”.

21Mr. Jeffery confirmed that there were no concerns raised by the Town’s Engineering department, the Building Department, Fire Services, or the Essex Region Conservation Authority (“ERCA”). Specifically, ERCA confirmed that it had no concerns relating to stormwater management.

22The Tribunal has considered Mr. Jeffery’s summary and recommendation in his planning report of May 31, 2021 and notes that:

(a) Notwithstanding Mr. Jeffery’s expressed opinions, and despite any indication at that point that there were any adverse impacts of any kind his written planning summary was that there were “some significant issues” regarding the subject application’s ability to meet the four tests, particularly that the Variance was minor;

(b) Mr. Jeffery provided no clear planning recommendation and deferred to concerns and comments, if any, that might come from neighbouring owners and other interested stakeholders/agencies. In his view, it was “important that the concerns and comments of these stakeholders be taken into consideration as part of the full evaluation of the application”;

(c) Noting that a variance for a 35% lot coverage was approved to the property immediately to the south of the Subject Property, and acknowledging that other decisions of the Committee are not precedent-setting, Mr. Jeffery recommended that the Committee act consistently in this regard when determining whether the proposed relief requested by the Applicant is desirable for the appropriate use or development of the land.

(d) No recommended Conditions were provided by Mr. Jeffery, in his report, in the event the Application was approved.

ISSUES

23Any application for a minor variance requires a determination by the Tribunal as to whether the requested variance meet the four tests set out in s. 45(1) of the Planning Act (“Act”) and should be authorized by the Tribunal. The Tribunal must accordingly be satisfied, in this Appeal, that the Variance that would permit the construction of the residential dwelling: (a) maintains the general intent and purpose of the Town of Tecumseh Official Plan (“TOP”); (b) maintains the general intent and purpose of the Town’s comprehensive Zoning By-law No. 1746 (“ZBL”); (c) is minor, and (d) is desirable for the appropriate use or development of the Subject Property.

24Additionally, the Variance must be consistent with the Provincial Policy Statement 2020 (“PPS 2020”) and conform to any applicable Provincial plans. In this instance there is no additional Provincial plan having application in Tecumseh.

25The Tribunal must also have regard to matters of Provincial interest under s. 2 of the Act, and to any decision made by the Committee as well as all information and material that the Committee considered in making its decision.

26Upon the evidence presented, given the single Variance requested by the Applicant, the primary focus of this Appeal is whether the proposed residential structure, with its size and lot coverage, relative to the total dimensions of the lot, and its neighbourhood context and location, is excessive, such that it results in unacceptable adverse impact and cannot be considered minor and is not desirable for the for the appropriate use and development of the Subject Property. The Town has also raised the issue of self-created hardship and need as relevant to the determination of what is minor or desirable.

ANALYSIS AND DISPOSITION

Position of the Applicant

27It is the Applicant’s submission that the Application meets the four tests. As the dwelling is meeting all setbacks and other performance standards, it will “mesh” with the surrounding area. The Applicant, supported by Mr. Caster’s evidence submits that the resultant additional massing and scale with the increased lot coverage will only reduce the size of the backyard and be mitigated by trees and foliage. The increased lot coverage will have no discernible impacts and appear, on the street, to fit into the neighbourhood.

28The Applicant submits that the rationale for the size and form of the dwelling has been fully explained and will, at a time when building costs are high and increased density is appropriate, allow for the construction of a house that will accommodate the health issues of the Applicant in years ahead and thus is appropriate. While a second floor could be accommodated on a smaller footprint a bungalow will be more compatible with the majority of ranch style homes in the area. No person has complained, save one, whose concerns about drainage have no merit. Finally, the Applicant points out that a variance of 35% lot coverage was approved on the adjacent property and that the within Application, on the Subject property, will be consistent with that approach in requesting a 38.7% lot coverage variance for the floor plan and site plan presented.

Position of the Town

29The Town submits that the Variance is not minor and is not desirable for use and development of the property. The Variance is too large and too significant to be minor given the neighbourhood and the lot coverage in the area. The adverse impact, for the Town, is that, if approved, the Variance will have the potential to open the door to potential change in built-form and change the character of the neighbourhood. The Town submits that the issue is not limited to only that of compatibility but additionally the question of desirability. In this case the Town argues that introducing such a sizeable mass and scale of a dwelling on this lot size is not desirable and is not minor.

30With respect to the Applicant’s rationale for the proposed size and layout of the bungalow giving rise to the request for the lot coverage Variance, essentially the Town submits that although the Applicant’s circumstances may be authentic, such personal hardship to the Applicant is not relevant and rather, the rationale for determining desirability should relate to any unique features of the property (and not the occupant) that might affect the ability to comply with the zoning standards. The example referred to by Mr. Jeffery as a reasonable rationale for a variance is a lot with a large mature oak tree that would limit the area of a lot that could be developed.

31To the matter of hardship, the Town further contends that the Applicant had the ability, when she owned both the Subject Property and the adjacent lot, which originally held one building, to again build one larger home on two consolidated lots, and thus meet the lot coverage metric. Instead, by securing the prior variance for 35% lot coverage on the adjacent lot, selling that, and now applying to build a too-large home on the second lot with the required Variance, the Town submits that this is a hardship of the Applicant’s own making, and it should not be considered.

Planning Evidence and Approach to the Facts and Law

32It is trite to say that in the conduct of a planning appeal the interpretation of planning legislation and planning policies is ultimately a question of law to be decided by the Tribunal and not governed solely by planning opinion evidence. The Tribunal must ultimately determine the legal question of whether the four tests have been satisfied and that the variance is consistent with Provincial policy as required by the Act. While planning evidence may assist the Panel it does not supplant the function of the Tribunal as the trier of fact and its determination of the legal requirements mandated by the legislation.

33Moreso, as an administrative tribunal, the Tribunal has the ultimate discretion in deciding how to address and consider opinion evidence (or factual evidence) before it. Accordingly, while expert evidence such as that of a planner may, in a hearing, be unchallenged and uncontroverted by other expert opinion evidence, as is the case here, this does not obviate the ability or requirement of the Tribunal having expertise in the subject matter of planning appeals, to cast a carefully objective eye to such opinion evidence to assist the Tribunal. The Tribunal must come to its own conclusions on the planning questions to be addressed in the hearing.

34As this Panel has noted before, the nature of the four tests under s. 45(1) of the Act in a minor variance application are well-understood and known to the Tribunal. Though often helpful, the application of the tests to the facts may be undertaken without independent planning opinion evidence. Administrative tribunals are provided with significant discretion under the Statutory Powers and Procedures Act, and empowering statutes to consider and hear evidence in a less formal manner as and the discretion to determine what evidence it will consider since they are considered adjudicative bodies possessing specialization and expertise in the subject matter.

35The Tribunal has carefully considered the respective positions of the Parties, and the whole of the evidence, including the planning evidence provided by Mr. Jeffery both within his original planning report and at the hearing. For the reasons that follow, while Mr. Jeffery’s planning evidence has been helpful and pertinent to the issues to be determined, as advocated by the Town, ultimately the Tribunal finds that the four tests have been satisfied, the Variance is consistent with the PPS, and represents good planning and should be authorized. The Tribunal has also had regard for the Decision of the Committee and the information and documents that were before it.

Test 1 – Variance Must Maintain the General Intent and Purpose of the Official Plan

36The Tribunal finds that the proposed Variance, as it will permit the proposed dwelling, maintains the general intent and purpose of the TOP.

37The Subject Property is a well-integrated part of a large residential area of the municipality and is designated Residential. As Mr. Jeffery has noted, the proposed construction of a single unit dwelling under the designation, maintains the intent of the TOP.

38Although not opined upon by Mr. Jeffery, the Tribunal also has considered the following policies within Policy 4.2.2, of the TOP, (Page 44-47, Exhibit 1) which apply to lands in Residential areas, and include the following excerpted policies:

(i) “the use of lands designated Residential shall be for all forms of housing, including special needs housing, in accordance with subsections 4.2.2.1, 4.2.2.2 and 4.2.2.3”;

(iv) “within existing stable residential areas, applications for infill or redevelopment must be located and organized to fit with neighbouring properties and must satisfactorily address the criteria contained in Section 3.18 of this Plan….”;

(v) the intensification of residential lands shall be encouraged and standards of development that will assist in achieving this objective shall be a priority for the Town…..Residential intensification shall be defined as a net increase in residential units or accommodation within a given property, site or area and includes:

b. the development of vacant or underutilized lots within previously developed areas;

39Section 3.18 of the TOP, cross-referenced in section 4.2.2 of the TOP addresses Land Use Compatibility in the broader context of development patterns and includes the type of policy addressing land use compatibility found in many official plans. In this respect the TOP provides that (emphasis added):

……Further development and redevelopment in the Town will be guided by principles of land use compatibility that respect the quality and stability of existing areas and provide for suitable transition between areas of differing use, sensitivity, urban design treatment and intensity in order to avoid or mitigate adverse effects. Land use compatibility does not mean “the same as” but to coexist harmoniously with one another.

40Mr. Jeffery was of the view that these policies relating to redevelopment or development applications and compatibility do not necessarily apply to the Applicant’s Application. The Tribunal must disagree.

41Generally, any type of application involving the construction of buildings and structures represents development and the construction of a new dwelling on vacant land, in the Tribunal’s view, must surely call into play these official plan policies relating to compatibility of such new development, the mitigation of adverse effects, and the inclusion of special needs housing in the community. In this case, considering whether the Application maintains the general intent and purpose of the TOP policies that address new residential construction, compatibility, the stability of existing areas and residential use and policies relating to special needs housing must be incorporated within the exercise of deciding this branch of the four-part test.

42In this regard, the Tribunal finds that the Variance, as it will permit the proposed construction will maintain the general intent and purpose of the Official Plan policies addressing residential development. The proposed one-level, modestly sized bungalow, within the smaller lot, will be compatible, and located and organized to fit, with properties in the immediate and surrounding residential neighbourhood, represents the inclusion of a special needs form of housing referred to in the OP (as that is defined in the PPS 2020) and represents intensification, albeit very limited intensification, of an underdeveloped vacant lot in an established residential neighbourhood.

43These considerations, in the Tribunal’s view, also factor into the determination of whether the Variance is minor and desirable, as discussed below.

Test 2 – Variance Must Maintain the General Intent and Purpose of the Zoning By-law

44Mr. Jeffery agreed that the Variance and proposed construction on the Residential Zone 1 Subject Property will maintain the general intent and purpose of the Tecumseh ZBL. He opined that the purpose of the lot coverage and other performance standard provisions is to ensure that the scale and massing of buildings are appropriate and that the lot will be able to provide adequate areas for landscaping, parking and other amenities. In that regard, as the single unit building can be built in compliance with all other zoning by-law requirements, the Variance maintains the general intent of the ZBL.

45The Tribunal accepts Mr. Jeffery’s planning evidence on this branch of the tests and finds that the Variance will maintain the general intent and purpose of Tecumseh’s consolidated ZBL No. 1746.

Test 3 – The Variance Must be Minor

46Upon the whole of the evidence, it is clear to the Tribunal that there is nothing to indicate that there are any unacceptable adverse impacts which will arise if the Variance is authorized in the nature of: privacy; shadow; light and sky view; inappropriate building interface; adverse interference with adjacent dwellings or properties; and other such hallmarks of whether a variance is minor. Mr. Braun’s concerns about drainage impacts have been, and will be, squarely addressed by ERCA and the Town. Mr. Jeffery agrees with the evidence of Mr. Cushing and Mr. Caster that there is no valid drainage concern that cannot be addressed in the building process.

47What we are left with is the question of whether the Variance is not minor because the Town submits that: (a) the 37.8% lot coverage for the size of the lot will disrupt the consistency of the neighbourhood that has, as Mr. Jeffry opines, been maintained over the past decade; (b) the resultant increase in massing and scale of the dwelling is excessive and will not be in keeping with the character of the neighbourhood “given it’s overall size”; and (c) advancing a precedent floodgate argument, allowing a building envelope of this size within smaller sized lot has the potential to lead to a change in built-form character in this neighbourhood and thus has the potential to change the character of the neighbourhood, which the municipality states it is attempting to prevent.

48This Tribunal, and this Panel member, have confirmed in prior decisions that the quantitative numerical deviation of a variance, in and of itself, is not necessarily determinative as to whether a variance is minor and that this type of robotic exercise of looking only at numbers may be of little assistance in assessing what is “minor”. Instead it is more helpful to examine the specific facts of the case and such things as: the relevant neighbourhood context; the specific characteristics of the proposed building and the lot relative to that context; the visual appropriateness of the proposed residential development as it will be permitted by the Variance; the sense of proportion, massing and scale that will result; whether the proposed dwelling will “fit with neighbouring properties” and be compatible by respecting the quality and stability of existing areas; and especially, the impact of the deviations upon the neighbourhood area.

49As the Tribunal reviews the whole of the submitted evidence there is nothing to suggest that the proposed lot coverage of the Subject Property and the lot coverage of the adjacent property to the south, will result in any significant deviation from the character of the broader residential neighbourhood or result in any concerns of inappropriate fit or incompatibility. Nor will the Variance, limited to the second of the only two smaller sized lots in Mr. Jeffery’s defined neighbourhood, open the floodgates of potential change in this Tecumseh residential neighbourhood character that would offend the policies in the TOP. In light of the complete absence of any other adverse impact, the Variance, as it will permit the proposed dwelling, is determined by the Tribunal to be minor.

50The reasons for this finding on this branch of the test include the following:

(a) Upon a review of the evidence, as the Tribunal has found, there is no good planning rationale that supports the very limited neighbourhood context arbitrarily selected by the Town to support its submission that the proposed dwelling is incompatible and a poor fit. As the materials indicate, and as the Applicant has argued, there are other smaller sized lots in reasonably close proximity to the Subject Property and the qualitative assessment of “fit” should not be limited to such a constricted neighbourhood context of some larger lots. While the Subject Property and the lot to the south are indeed the two smallest lots within the narrower area defined by Mr. Jeffery in his analysis, they are not an anomaly when considering the number of similar sized lots in the broader neighbourhood;

(b) Acknowledging the broader residential character beyond the lots on the west and east side of Barry Street and the rear lots located on the east side of Burdick to the west allows for a less constrained and more objective determination of fit and compatibility with the character of the neighbourhood. The Town’s concerns about setting a precedent by allowing the Variance and the alarmed concerns about the potential for changing the character thus have little merit. Community neighbourhoods are always evolving, and in this case, given the size constraints of this lot, which was part of the originally surveyed subdivision, the presence of a modestly sized dwelling within its residential context does not lead to a qualitative assessment that the Variance that will permit the dwelling cannot be minor.

(c) Under a different lens, the limited exception of two smaller sized lots within Mr. Jeffery’s defined neighbourhood area of larger sized lots, and the necessity of requesting a lot coverage variance because of such unique lot size limitations may itself extinguish concerns for a potential to change the entire character of an entire neighbourhood. The lot coverage variance is required because of the smaller lot size and will not be introducing a character-changing precedent to other nearby properties since immediately proximate lots are adequately sized to accommodate a modest sized bungalow such as the one proposed for the Subject Property.

(d) On a qualitative basis there is no evidence to suggest that the proposed dwelling will not fit within the character of the neighbourhood or will be incompatible with the surrounding area. As the Tribunal reviews the whole of the submitted evidence the proposed lot coverage of the Subject Property and the lot coverage of the adjacent property to the south, will not result in any significant deviation from the character of the broader residential neighbourhood or result in any concerns of inappropriate fit or incompatibility. While indeed larger in relative terms because of the lot size, the Tribunal is persuaded by Mr. Cushing’s evidence and Mr. Caster’s evidence, that the dwelling will nevertheless be visually compatible with the surrounding area. Compatibility, as defined in the TOP’s policies, does not mean the same as, but rather, it requires coexistence in harmony with adjacent residences. In this case, no other variances are required to comply with all other performance standards and the dwelling will, as Mr. Caster and Mr. Cushing submit, visually fit into the streetscape and the lot fabric of the street without significant difference. It is only the rear yard that may be altered but even then, the proposed dwelling will meet set-back requirements, and includes a covered open patio area.

(e) The absence of any objections from other nearby residence speaks to the absence of any real concerns being advanced from immediate residents as to a lack of fit or incompatibility

(f) The Tribunal accepts the evidence of Mr. Caster and Mr. Cushing that the size of the one-level bungalow is reasonably necessary to accommodate the needs for the home but is otherwise of modest floor-area. It is only the limited size of the original surveyed lots that drives the need for the lot coverage Variance.

(g) The Tribunal has had regard to the Committee of Adjustment’s discussions regarding prior applications. Pointedly the previously approved variance for the adjacent subdivided lot to the south, and the matter of common ownership of the two smaller-sized lots, does not, in any way, factor into the consideration of the four tests.

51In summary, in the absence of any other adverse impact, the 37.8% lot coverage will not disrupt the consistency of the broader or immediate neighbourhood, does not result in massing and scale of the dwelling that is excessive to the extent of being incompatible. To the contrary it is the Tribunal’s determination that the proposed dwelling will be in keeping with the character of the broader residential area and will not lead to any significant change in built-form in this neighbourhood or give rise to an unacceptable change in the character of the neighbourhood.

52While the Town has indicated that it has a municipal agenda to prevent any such type of change in the character, if indeed there will be such a change, the policies of compatibility and neighbourhood character contained within the Town’s Official Plan policies do not support such an absolute agenda.

53In the Tribunal’s view the proposed Variance, and the form of dwelling as it will be situated on the Subject Property within its neighbourhood context, is minor.

Test 4 – The Variance Must be Desirable for the Appropriate Use/Development of the Lands

54The Tribunal finds that the Variance is desirable for the appropriate use and development of the Subject Property.

55The smaller size of the lot relative to some of the larger lots requires the consideration of a variance for greater lot coverage to permit the construction of a modest sized home comparable to, or of a lesser size, than those that exist on numerous other lots. This will permit the development of an existing vacant and undeveloped residential lot which conforms to the TOP policy (s. 4.2.2 (b)) encouraging intensification of residential lands. This itself is desirable.

56The adjacent lot, of similar size received the benefit of an authorized variance of 35% of lot coverage which allowed for the construction of a dwelling with similar lot size constraints. This speaks to the logical need and desirability of the Variance to allow for reasonable development upon this second smaller lot surveyed within the original plan of subdivision.

57The Tribunal acknowledges the manner in which Mr. Jeffrey appropriately considered the “need” to allow for a greater lot coverage to allow for the construction of a home that is comparable, and that he has fairly noted the need for consistency with the prior decision granting a variance to permit development on the adjacent similarly-small sized lot. Notwithstanding this evidence, Mr. Jeffery has nevertheless summarily concluded that the Variance is not desirable for the appropriate development of the land, ostensibly based upon one neighbour’s complaints about comparative lot coverage on other nearby properties and a lack of fit. Based upon a prior perceived absence of rationale or need to build a home larger than a 1,980 square foot dwelling that could be built and meet lot coverage requirements, Mr. Jeffrey appeared to consider that the Variance was therefore not desirable.

58Frankly, in the Tribunal’s view, this planning rationale is not reasonable.

59For the reasons indicated, the Tribunal has found that there will be a compatible fit and that there are no legitimate concerns about creating a precedent that will jeopardize the character of a neighbourhood. If this is the basis for the planning opinion on the test of desirability, it is not supported by the evidence.

60The Tribunal’s also is unable to concur with Mr. Jeffrey’s (or the Town’s) focus upon the “rationale” or need for the Variance or a building of a size greater than 1,980 square feet (which would not require the Variance). The requirements of s. 45(1) of the Act do not include a threshold requirement of need, rationale or hardship and no Applicant is required to provide a justification to request a variance from a zoning by-law’s performance standards. To the contrary, s. 45(1) expressly provides a valid planning process to allow for an owner of a property to request a deviation from the performance standards of a zoning by-law because building standards are not always one-size-fits-all. Provided the tests are met, property owners regularly require varied construction standards to accommodate the many specific attributes or deficiencies of a property and to address housing related requirements.

61In this case the Town has urged the Tribunal to ignore any “personal hardships” related to the Applicant’s health needs as relevant to what is desirable. The Town submits that because both the Subject Property and the adjacent property (that has been developed with a minor variance on lot coverage) could have been retained by the Applicant and a larger home built on consolidated lots the desire or “need” to build a larger home could have been accommodated on a larger consolidated lot. With respect, the Tribunal does not consider that the facts presented demonstrate a “self-created hardship” on the part of the Applicant, as the Town submits. The legislation requires the Tribunal to consider this application permitted under the Act, with respect to this subject property, in the context of its location and applicable planning policies, and provincial planning policies, and determine whether the Variance is desirable upon the whole of the factual circumstances.

62As to the test of desirability it is the Tribunal’s view that some consideration must be given to the goal in s. 4.2.1(ii) of the Town’s Official Plan to encourage the development of a greater variety of housing types in the Town to meet the future housing needs of all households and to meet the provincial housing objectives as set out in the PPS 2020 and s. 4.2.2 (i) which specifically directs that Residential designated lands shall include “special needs housing”.

63Policy 1.4.3 of the PPS 2020 provides that planning authorities will provide an appropriate range and mix of “housing options” by permitting and facilitating all housing options required to meet the health and well-being requirements of current and future residents including “special needs” requirements. The PPS 2020 defines “housing options” as a range of housing that includes housing for people with special needs. “Special needs” is defined as “any housing…that is used by people who have specific needs including, but not limited to needs such as mobility requirements or support functions for daily living and adaptable and accessible housing for persons with disabilities”.

64While the policies under the PPS 2020 are indeed higher order provincial policies, they are nevertheless relevant, under the TOP, which addresses housing objectives and special needs housing consistent with the PPS 2020, to the extent that they touch upon the matter of desirability for the use of the lands. The Tribunal is cognizant of the fact that our Province has recognized the housing benefits of aging in place within residential properties and other options such as second-unit suites to accommodate senior family members. The evidence is not challenged, in this case, that the Applicant’s medical condition and current and future special needs are a factor in the design. The Tribunal disagrees with the Town’s approach that such personal hardships are not relevant to the matter of desirability for the residential use of the Subject Property.

THE LAW - THE TRIBUNAL’S APPROACH TO THE 3rd AND 4th TESTS

65The Tribunal has carefully considered the cases and submissions provided to the Tribunal by the Town.

66Regarding the Divisional Court’s decision in Vincent v. DeGasperis, 2005 CarswellOnt 2913, the Tribunal acknowledges the Court’s indication that minor variances are not limited to cases of either need or hardship, which is not a requirement. Need or hardship is, however, not necessary excluded from consideration.

67The Court also noted in DeGasperis, the requirement that the Tribunal provide a careful and detailed analysis of each of the four tests. In undertaking that full and complete analysis in this Decision, the Tribunal has undertaken the required thorough and detailed analysis of each of the four tests. This includes the requirement that the Variance be desirable for the use and development of the land (and not merely compatible). In this respect the DeGasperis Decision, as it has been cited by the Town, is duly noted.

68The Tribunal has also considered the Board’s decisions of Keefer v. Toronto (City) Committee of Adjustment 1987 CarswellOnt 3709, 19 O.M.B.R. 475 and Sokolski v. Toronto (City) Committee of Adjustment 2004 CarswellOnt 6000 including its treatment of the subject of a variance leading to changes in built form in neighbourhoods (versus the consideration of unacceptable adverse impact). For the reasons indicated in this Decision, the Tribunal is of the view that, upon the facts of this Appeal, the Variance is minor and desirable and will not create an inappropriate precedent for future changes to built-form.

69Finally, with respect to the “five factors” set out in the Sokolski decision and noted by the Town in its submissions, the Tribunal has considered these factors in determining whether the Variance is desirable and minor.

70Based upon the Sokolski Decision, the submission of the Town is that no consideration should be given to personal hardships, but rather only to hardships related to the Property. The Tribunal notes that the Board in Sokolski, addressed such matters over eighteen years ago when Provincial policies relating to housing options and special needs were not as they are now, incorporated into official plans. Further, the Tribunal has found that the facts of this case do not demonstrate that the Applicant has “self-created” hardship as an underlying basis in making the Application and the form, manner and timing of the Application is not self-created nor relevant, as noted in this Decision. The Applicant’s rationale for designing a mobility-assistive home to meet her needs is relevant as explained.

SUMMARY OF FINDINGS AND DISPOSITION

71The requested Variance does not give rise to any substantial concerns relating to higher order provincial policies in the PPS 2020 and the Tribunal has considered those higher order policies as they touch upon special needs housing as incorporated into the TOP as a consideration to the matter of desirability. As required by the Act the Tribunal finds that the Variance, as it will permit the proposed dwelling, is consistent with the PPS 2020.

72The Tribunal has also had regard to matters of Provincial interest and to the decision of the Committee, as it originally denied the Application, as well as all information and material that the Committee considered in making its decision and forming part of the municipal record before the Tribunal.

73Upon the analysis of the evidence as set out in this Decision and the various findings, the Tribunal finds that the dwelling proposed by the Applicant, and set out in the Site Plan and Floor Plan found in Exhibit 1, as it will be constructed with the approved Variance, and with the imposed conditions as referred to, maintains the general intent and purpose of both the Municipality’s TOP and the ZBL, is minor, and is desirable for the appropriate development and use of the Subject Property.

74For the reasons given, the Tribunal will accordingly allow the Appeal.

75Mr. Jeffery provided no evidence, and the Town initially provided no submission, as to any proposed conditions in the event the Tribunal authorized the Variance. The Tribunal, before adjourning to render its Decision, requested that the Town provide any conditions that might be proposed. They were received and have been considered and are, as amended, included for the orderly processing of the requested building permit in accordance with the Tribunal’s Order. This includes the condition that the dwelling be constructed substantially in accordance with the Site Plan and Floor Plan before the Tribunal in this hearing, to the satisfaction of the Municipality’s delegated building official, with the proviso that changes internal to the dwelling be permitted upon the qualifications noted.

ORDER

76THE TRIBUNAL ORDERS that the appeal is allowed and the variance to Zoning By-law No. 1746, permitting a maximum lot coverage of 38.7 percent lot coverage, where subsection 6.1.5 of the By-law requires a maximum lot coverage of 30 percent, is hereby authorized subject to the following conditions:

(a) That the Applicant provide and implement an engineered drainage and grading plan for the Subject Property to ensure that runoff is controlled and prevented from flowing onto adjacent properties to the satisfaction of the Town's Chief Building Official;

(b) That the one-storey dwelling be constructed substantially in accordance with the Site Plan and Floor Plan submitted as part of the Application, filed at pages 21 and 22 of Exhibit 1 to this hearing and as Attachment 1 to this Order, provided that, nothing will prevent the Applicant from altering the interior layout of the dwelling in a manner that will not otherwise result in change to the building envelope or to the indicated setbacks, or require an additional minor variance.

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR