Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
August 1, 2023
CASE NO(S).:
OLT-22-004669
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Andris Michalis
Subject:
Minor Variance
Description:
To permit construction of a new two-storey replacement dwelling with attached three-car garage and walk-out basement
Reference Number:
58-A-22
Property Address:
55 Rebellion Way
Municipality/UT:
Township of King/York Region
OLT Case No.:
OLT-22-004669
OLT Lead Case No.:
OLT-22-004669
OLT Case Name:
Michalis v. King (Township)
Heard:
July 13, 2023 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Andris Michalis
Andrew Miskiv*
Township of King
Andrea Skinner
DECISION DELIVERED BY Kurtis Smith AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter before the Tribunal is a series of Minor Variances pursuant to s. 45(12) of the Planning Act (“Act”) with respect to the property municipally known as 55 Rebellion Way (“Subject Property”) in the Township of King (“Township”).
2No other person sought Party or Participant Status prior to or during the hearing.
3Andris Michalis (“Applicant”) desires to construct a new two-storey single detached replacement dwelling on the Subject Property, which is at the corner of Rebellion Way and Church Street. The original design of the dwelling required a total of eight variances to permit the construction. As such on October 19, 2022, the application came before the Township’s Committee of Adjustment and was denied. The Applicant then filed the appeal on October 26, 2022.
4Since the time the appeal was filed, the Applicant and Township staff continued positive dialogue which led to a redesign of the proposed dwelling which reduced the number of variances to five. The redesign repositioned the garage and driveway onto Church Street instead of Rebellion Way.
5To support the replacement dwelling design, the sole witness called was Paul Kulyk, the land use planner for the Township who, upon review of his Curriculum Vitae and Acknowledgement of Expert’s Duty form, was qualified on consent by the Tribunal to provide opinion evidence in land use planning.
AMENDED APPLICATION
6Pursuant to s. 45 (18.1) and (18.1.1) of the Act, the Tribunal has the discretion to allow amendments to a minor variance application without the requirement for further public notice if it is of the opinion that such amendments are minor by virtue of s. 45(18.1) and (18.1.1) of the Act.
7Mr. Kulyk provided the Tribunal with review of the amended variances and is of the opinion that the amended application is minor and does not require further public notice.
8The Tribunal concurs and so rules.
9The original variances can be found in Exhibit 1, Tab 6 (page 41).
10The amended variances (Exhibit 3, Tab 1 (page 4)) are as follows:
Zoning By-law #74-53, as amended.
Hamlet Residential (HR) requirements:
Variance request:
1
Section 8.2(iii) requires a Minimum Front Yard (Church Street) of 7.5 metres.
Relief from Section 8.2(iii) to
reduce the Minimum Front Yard to 6.0 metres.
2
Section 8.2(iii) requires a Minimum Front Yard (Rebellion Way) of 7.5 metres.
Relief from Section 8.2(iii) to reduce the Minimum Front Yard to 3.6 metres.
Zoning By-law #2022-053 (HR3) requirements:
Variance request:
1
Section 6.3, Table 6-3 states that the Minimum
Front Yard Setback (Church Street) shall be 7.5 metres.
Relief to decrease the Minimum Front Yard to 6.0 metres.
2
Zoning By-law #2022-053 – Hamlet Residential
Zone Special Provisions:
Section 6.4.2a), Table 6-4, the maximum width of
an attached private garage in any Hamlet
Residential zone (for a lot with greater than 18
metres of frontage) is 50% of the width of the principal building or 9.0 metres, whichever is less.
Relief from Section 6.4.2a),
Table 6-4 to increase the
permitted private garage width to 10.01 metres from 9.0 metres.
Zoning By-law #2022-053 – General Provision requirements:
3
Section 3.41, Table 3-2 iv) states that the minimum
sight triangle for an Urban Collector Road shall be
15.0 metres.
Relief from Section 3.41, Table
3-2 iv) to reduce the Site Triangle to 5 metres.
TOWNSHIP ZONING BY-LAW
11As shown in the chart above, the Township is at a point of transition with respect to their comprehensive Zoning By-law. Zoning By-law No. 74-53 (“ZBL-74”) has been in full force and effect since 1976, whereas Zoning By-law No 2022-053 (“ZBL-22”) was adopted by Township Council on September 26, 2022 and is currently under appeal (“Case No. OLT-22-004723”).
12Mr. Kulyk communicated to the Tribunal that the application was filed and deemed complete on September 28, 2022, two days after the adoption of the new By-law. As such, Mr. Kulyk explained that “during this interim period, dual conformity with both bylaws is required to provide for subsequent issuance of a Building Permit under the ‘in-force’ By-law and to ensure that development is compliant with the adopted By-law into the future. As such, the subject minor variance Application is required to obtain relief from both By-laws.”
PLANNING EVIDENCE
13Mr. Kulyk provided the Tribunal with oral and written evidence (Exhibit 6) to support his findings that all five minor variances represent good planning, having regard to s. 2 of the Act, is consistent with the Provincial Policy Statement 2020 (“PPS”), conforms to the Growth Plan for the Greater Golden Horseshoe 2020 (“Growth Plan”), and meets the four legislative tests under s. 45(1) of the Act.
14The legislative variance tests are as follows:
a. maintains the general intent and purpose of the Official Plan (“OP”);
b. maintains the general intent and purpose of the ZBL;
c. is minor in nature; and
d. is desirable for the appropriate development or use of the land, building or structure.
FRONT YARD RELIEF
15The Tribunal notes that variance “1” of ZBL-74 and variance “1” for ZBL-22 are by virtue the same variance.
16Furthermore, Mr. Kulyk explained to the Tribunal that ZBL-74 considers the exterior side yard of a corner lot as a front yard. As a result, variance “2” of ZBL-74 does not need to be duplicated as ZBL-22 now defines an exterior side yard setback in which the dwelling meets.
Maintains the General Intent and Purpose of the Official Plan
17The Subject Property is within the Hamlet Boundary of Schedule E of the OP and is designated as Hamlet Residential and Natural Heritage System on Schedule E4.
18Mr. Kulyk opined that there is sufficient space to accommodate the parking requirements between the three-car garage and the street. Additionally, the requested relief meets the policy objectives of 6.2.2.12 and 6.2.3.1.2 of the OP as the dwelling is compatible with the character, scale and design of the neighbourhood.
Maintains the General Intent and Purpose of the Zoning By-law
19The Subject Property is zoned Hamlet Residential Zone within ZBL-74 and Hamlet Residential Three within ZBL-22. The front yard setback required under both ZBLs is 7.5 metres.
20Mr. Kulyk explained to the Tribunal that “the intent and purpose of the 7.5 metres setback is to provide separation of the buildings and structures from the street line and allow for green space and parking on a lot.”
21The applicant proposes a 6 metres setback from Church Street (front yard) and 3.6 metres from Rebellion Way (exterior side yard). Mr. Kulyk is of the opinion that the proposed setbacks provide sufficient parking space in the driveway, provides adequate green space adjacent to the street and ultimately meets the general intent and purpose of ZBL-74 and ZBL-22.
Desirable and Appropriate
22Mr. Kulyk provided the Tribunal with a series of visual evidence (Exhibit 2) that illustrate the neighbourhood dwellings having front yard ranging between 2.6 metres to 29 metres. It is the opinion of Mr. Kulyk that the requested relief for the front yard(s) are not uncharacteristic of the neighbourhood and therefore is desirable and appropriate.
Minor in Nature
23It is the opinion of Mr. Kulyk that the reduction in the front yard(s) have no negative impact and are considered minor. There is adequate space for planting and vegetation, and the dwelling will not be imposing on the street.
GARAGE WIDTH RELIEF
Maintains the General Intent and Purpose of the Official Plan
24Mr. Kulyk provided the Tribunal with the following policies in the OP that relate to replacement dwellings and garage widths:
a. Policy 6.2.2.12 permits the replacement of an existing single detached dwelling with a new dwelling on an existing lot in the Hamlet Residential designation provided that the dwelling is compatible with the scale and design of existing development.
b. Policy 6.2.2.12 e. identifies that restrictions be provided in the Zoning By-law to limit garage and driveway width.
25It is the opinion of Mr. Kulyk that having the second storey of the dwelling restricted to the first two garages somewhat reduces the impact of the width of the garage at the streetscape. The character of the neighbourhood will not be adversely impacted by the modest increase and therefore is of the opinion, the variance meets the intent and purpose of the OP.
Maintains the General Intent and Purpose of the Zoning By-law
26The maximum width provision of attached garage is to restrict the width of such garage to 50% of the width of the dwelling OR a maximum of 9 metres, whichever is less. The dwelling is wider than 18 metres thus the maximum allowable garage is 9 metres.
27The garage is measuring at 10.1 metres in width, however the measurement includes the corner brick features which collectively measure at 1 metre.
28As mentioned above, Mr. Kulyk is of the opinion that restricting the secondary floor of the dwelling to the first two garages, minimises the impact of the width of the total garage on the streetscape.
Desirable & Appropriate and Minor In Nature
29Mr. Kulyk opined that the additional 1.01 metres required for the proposed garage includes two corner brick wall sections that add 1 metre in width. The remainder of the front wall of the dwelling is 11.47 metres in width and “as such, the proposed variance is viewed as a small increase”.
30Mr. Kulyk concluded by stating the requested garage width is desirable and appropriate development for the Subject Property and is minor in nature.
SIGHT TRIANGLE RELIEF
Maintains the General Intent and Purpose of the Official Plan
31Rebellion Way and Church Street are identified as “Urban Collectors” in Schedule F of the OP. Urban Collectors are planned to have rights-of-way up to 26 metres as they are designed for two-way traffic. Additionally, Church Street is identified on Schedule F as being an existing Active Transportation Route and Rebellion Way as a Proposed Active Transportation Route.
32The Townships Public Works Development (“PWD”) has undertaken additional review (Exhibit 3, Page 19) of the road classification and determined that a minimum of 22 metres is required and the appropriate sight triangle is 5 metres (where the ZBL-22 requires 15 metres for collector road intersections).
33Given the comments from the PWD, Mr. Kulyk is of the opinion that the relief of the sight triangle meets the intent and purpose of the OP.
Maintains the General Intent and Purpose of the Zoning By-law
34As mentioned above, the minimum sight triangle required is 15 metres for collector road intersections. The sight triangle is required to maintain an area free of structures to preserve sight lines at intersections.
35Given the PWD report dated June 29, 2023, Mr. Kulyk opined that the intent and purpose of the ZBL will be maintained.
Desirable & Appropriate and Minor In Nature
36As the PWD as determined the reduction in the sight triangle is acceptable, Mr. Kulyk communicated to the Tribunal that the requested variance is appropriate for the development of the Subject Property and is minor in nature.
CONDITION
37As part of Mr. Kulyk’s recommendation to the Tribunal, he requested the following condition to be considered:
a. that the revised set of minor variances identified in Tab 1 of Exhibit 3 be approved and tied to the updated house plans identified in Tab 2 of the same book.
38He further stated that
a. “It is common practice by the Committee of Adjustment to tie decisions to the plans submitted where the proposal is to be in substantial conformity at the time of applying for a building permit. The planning analysis and review was undertaken in context of the revised plans and as such, it would be appropriate if the decision did so. My recommendation is therefore that the variances be approved with the condition that the proposed dwelling shall be constructed substantially in accordance with the plans prepared by AM Design Build, dated June 6, 2023 and attached as Tab 2 to the Supplementary Document Book.”
FINDINGS
39The Tribunal accepts the uncontested planning evidence and opinions of Mr. Kulyk and is satisfied that the amended proposal which reduced the variances to five individually and collectively represent good planning, having regard to s. 2 of the Act, is consistent with the PPS, conforms to the Growth Plan, and meets all four tests under s. 45(1) of the Act.
40The Tribunal concurs with Mr. Kulyk that the planning evidence and conclusion of the minor variances, namely the front yard and garage width relief has been reviewed and analysed in the contexts of the revised plans.
41The member is aware that the resolution of the provisions of By-law No 2022-053 not under appeal is before the Tribunal as Case No. OLT-22-004723. The issuance of that decision is imminent, and therefore on that basis, the Tribunal will authorize the variances relating to By-law No 2022-053 on a contingent basis, and subject to applicable provisions coming into full force and effect.
ORDER
42THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-law No 74-53 and By-law No 2022-053 are authorized, subject to the following condition:
a. That the proposed dwelling shall be constructed substantially in accordance with the plans set out in Attachment 1.
43Variances authorized under Zoning By-law No. 2022-053 are contingent on that By-law coming into force and effect.
“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.