Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 21, 2023
CASE NO/S.: OLT-23-000302
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Nikola Karanovic
Subject: Minor Variance
Description: To permit increase of width to a driveway for a semi-detached dwelling
Reference Number: A 2023-025
Property Address: 273 Hartwood Avenue
Municipality/UT: Kitchener/Waterloo
OLT Case No.: OLT-23-000302
OLT Lead Case No.: OLT-23-000302
OLT Case Name: Karanovic v. Kitchener (City)
Heard: August 9, 2023 by Video Hearing (10:00 A.M.)
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Nikola Karanovic (“Appellant/Applicant”) 273 Hartwood Ave. City of Kitchener | Bojan Karanovic* (Brother of Appellant/Applicant) |
| Lesley MacDonald |
DECISION DELIVERED BY STEVEN T. MASTORAS And ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1This matter is before the Tribunal as a Merit Hearing appeal pursuant to s. 45(12) of the Planning Act (“Act”) to a minor variance decision by the City of Kitchener (“City”) Committee of Adjustment (“COA”) denying permission to widen a driveway, for a semi-detached duplex/dwelling with an attached garage, increasing the existing driveway width at 273 Hartwood Avenue (“Subject Property”).
2Specifically, the Appellant is seeking a variance to the Zoning By-law (“ZBL”) expanding the driveway width to 5.2 metres (“m”) from the current width of 3.84 m following the recently completed built form. The Subject Property was one of two (2) identical properties that were established by consent to sever the parcel by the COA in September 2022, and the neighbouring parcel is the subject of a second identical appeal heard on the same day and with a separate Order.
3The Appellant is seeking the maximum driveway width of 5.2 m, whereas a maximum of 3.82 m is permitted under Section 5.4, Table 5-3 of Zoning By-law No. 2019-051. The properties are located within Appendix C – Central Neighbourhoods of Low Rise Residential Four Zone (RES-4) in Zoning By-law No. 2019-051, which also has a maximum permitted driveway width of 40 percent (40%) of the lot width.
4The Notice of Hearing was properly circulated by the Tribunal on June 22, 2023 and is marked as Exhibit 1.
5Counsel for the City, Ms. Lesley MacDonald, appeared, very briefly, to advise the Tribunal that the City would not be appearing at either Hearing. It was noted that the Municipal Record on file with the Tribunal is marked as Exhibit 2, and the email submissions and attachments of the Appellant, received June 26, 2023, were marked as Exhibit 3. The Hearing proceeded as uncontested, although Exhibit 2 contains the City’s Planning Staff Report (“PSR”) detailing its position opposed to the variance.
LEGISLATIVE FRAMEWORK
6As this is a Hearing de novo, s. 45(1) of the Act establishes the “four tests”. In other words, to authorize the variance, the Tribunal, in an appeal, must be satisfied that the variance:
a. maintains the general intent and purpose of the official plan; b. maintains the general intent and purpose of the Zoning By-law; c. is minor in nature; and d. is desirable for the appropriate development or use of the land, building or structure.
7In addition, section 3(5) of the Act requires the Tribunal's Decision to be consistent with policy statements and Provincial plans, including the Provincial Policy Statement 2020. The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as for the decision of the COA and the information considered in the course of making its Decision, as set out in section 2.1(1) of the Act.
EVIDENCE
8The Appellant’s brother, Bojan Karanovic, was authorized to address the Hearing as a layperson and contractor/project manager and shared some of the history of the Subject Property, with demolition/construction commencing in May, 2022 followed by the delayed consent to sever application, which received the COA’s approval in late September 2022. Mr. Karanovic testified that the project was completed in late fall of 2022 and occupancy was authorized in December 2022 by the City, and the status quo can be maintained without the variance being sought regarding construction and occupancy.
9Mr. Karanovic advised the Tribunal that there were no expert witnesses present to address the Tribunal in regard to the appeal and proceeded to the best of his ability to address the four tests; however, he was clearly not qualified to speak to this requirement of the Act, and therefore could not adequately and credibly contest the matter. It was also quite evident that Mr. Karanovic was neither able to address s. 3(5) of the Act regarding Provincial policies and guidelines nor the COA’s considerations in the course of making its decision pursuant to s. 2 of the Act.
10The City’s detailed PSR (EXH. 2, p.101) stated the following:
It should be noted that the By-law 85-1, which is no longer in effect for this property, permitted a 5.2 metre wide driveway for a semi detached dwelling. Through the extensive review and update to the Zoning By-law staff have taken multiple factors into consideration, such as aesthetics, landscaping, and grading in order to implement the new regulations in Zoning By-law 2019-051 to address these concerns. The result was a new regulation of 40% of the lot width being permitted for driveway space for lands within Appendix ‘C’, which is now in full force and effect. Two (2) parking spaces are still permitted for the semi-detached duplex dwelling in tandem which meets the regulations of the Zoning By-law.
At the time of the severance application the driveways were shown on the provided plan to conform to the Zoning By-law however the applicant now is applying to widen the driveway from what was previously approved.
11Regarding the four tests, the PSR (EXH. 2, pgs.100-103) recommends the variances be refused and concludes the following:
Planning staff is of the opinion that the proposed variances that will widen the driveways on the semi- detached lots, do not minimize negative impacts on the environment as the impermeable surface will result in greater runoff from the property, and less natural water infiltration within the property. It also does not provide aesthetically acceptable parking areas within the surrounding context of the neighbourhood. The variances do not meet the intent of the Official Plan.
The purpose of the maximum driveway width is to ensure that the driveway and the parking and presence of vehicles do not dominate the front yard of the dwelling and the streetscape and allowing for landscaping, green space, and areas for natural water infiltration to occur. The applications are for both sides of a semi-detached duplex. If both sides of the semi-detached dwelling were permitted to expand their driveways, they would dominate 70% of the front yard area. This would result in the majority of the front yards to be dominated by driveway space and vehicle parking, with minimal space for landscaping and green space. The semi-detached dwelling is permitted to have parking spaces in tandem, with one space in the garage and one space in the driveway. Both semi-detached dwellings would meet this parking requirement, as it was shown at the time of the approved severance application. The variances do not meet the intent of the Zoning By-law.
The variances are not considered minor. The variances will create driveways that are oversized which will impact the lot and the surrounding neighbourhood. The increased driveway widths will encroach in the Driveway Visibility Triangles for both 271 and 273 Hartwood Avenue and reduce lines and visibility of pedestrians and oncoming traffic which could lead to potential safety issues.
The variances are not desirable for the appropriate development of the land. Instead, the variances will create unacceptably adverse impacts on the property, to the environment, to the streetscape and oncoming traffic and visibility of pedestrians. The parking is located in front of the porch entrance to the units, which impacts access to the units. The proposed driveway widths for both lots are not appropriate for the context of the existing neighbourhood.
[emphasis added]
ANALYSIS AND DISPOSITION
12The PSR recommendations were effectively uncontroverted at the Hearing by the Appellant, concluding that the Application did not meet any of the four tests in the minor variance, as outlined above. The Tribunal agrees with the detailed analysis in the PSR and concurs with the City’s evidence as referenced previously.
13Based on the Appellant’s lack of credible evidence to the contrary and compared with the City’s PSR, the Tribunal finds that neither of the four tests pursuant to the Act have been met. Furthermore, there was no evidence submitted by the Appellant addressing the additional requirements pursuant to s. 3(5) or s. 2 of the Act. Therefore, this appeal shall be dismissed, and the variance shall not be authorized.
ORDER
14THE TRIBUNAL ORDERS that the appeal is dismissed, and the variance is not authorized.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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.