Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 18, 2023 CASE NO(S).: OLT-23-000344

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

Applicant and Appellant: Mark Iacovette & Elizabeth Golanski Subject: Minor Variance Description: To permit a single detached dwelling construction on a vacant lot Reference Number: MV-2023-004 Property Address: 315 Botsford Street Municipality/UT: Newmarket/York OLT Case No.: OLT-23-000344 OLT Lead Case No.: OLT-23-000344 OLT Case Name: Golanski v. Newmarket (Town)

Heard: August 11, 2023 by video hearing

APPEARANCES:

Parties Mark Iacovette & Elizabeth Golanski (“Applicant/Appellant”) Town of Newmarket

Counsel/Representative* Angela Sciberras Paul Voorn*

MEMORANDUM OF ORAL DECISION DELIVERED BY D. CHIPMAN ON AUGUST 11, 2023 AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This decision is related to the Hearing of the Appeal filed by Mark Iacovette & Elizabeth Golanski, pursuant to s. 45(12) of the Planning Act against the Town of Newmarket’s (“Town”) Committee of Adjustment (the “COA”) decision refusing, in part, Minor Variances requested for relief from the Town’s Zoning By-law No. 2010-40 to construct a single detached dwelling on vacant land.

2The property address is municipally known as 315 Botsford Street, in the Town of Newmarket, Regional Municipality of York.

3On March 29, 2023, a COA meeting was held to consider the relief sought for four Minor Variances. In the Notice of Decision, dated April 3, 2023, the COA refused Variance Nos. 1, 2 and 4; and approved Variance No.3 subject to conditions set out by the Committee at that time.

4This being a hearing de novo, all four of the Minor Variances are before the Tribunal for consideration:

1. Section 6.2.2: The Maximum Building Height permitted is 8.5 metres (“m” and 10.1 m is proposed.
2. Section 6.2.2: Allow a proposed finished first floor height of 2.0 m where Zone Standards permit a finished first floor height of 1.2 m.
3. Section 6.2.2: Allow a driveway width of 7.7 m whereas 6.0 m is permitted
4. Section 4.2: Encroachments into Required Yards: Porch Step Encroachment: Maximum Permitted Encroachment into required Front Yard is 2.4 m and 5.57 m is proposed.

5On June 28, 2023, the Town of Newmarket advised the Ontario Land Tribunal (“OLT”) by email that Town Staff would take no position and would not be attending the hearing. Having stated this, Mr. Voorn, Counsel to the Town, did attend for information’s sake only and did not partake in the hearing.

6For the reasons that follow, the Tribunal will allow the Appeal and authorize the requested Variances, with conditions.

Site and Area Context

7The subject property is vacant of any structures, regular in shape, with 18.32 m (60.10 feet [“ft”]) of frontage on the north side of Botsford Street and an average lot depth of 40.0 m (131.23 ft) with a total lot area of approximately 736 square metres (“m2”).

8The subject property is located at a lower elevation from adjacent properties to the north and east and slopes down across the site from the northeast towards the southwest. The majority of dwellings in the area are predominantly single and two storey detached dwellings. Those dwellings to the east are over 100 years old, with newer homes, 20 – 50+ years old, located to the south, north and west.

ISSUES AND ANALYSIS

9In this Appeal, the issue before the Tribunal is whether the Variances meet the four tests set out in s. 45(1) of the Act and whether it should be authorized by the Tribunal. The Tribunal must be satisfied that the Variance, if granted:

(a) maintains the general intent and purpose of the Township’s Official Plan (“OP”); (b) maintains the general intent and purpose of the ZBL; (c) is minor; and (d) is desirable for the appropriate use and development of the Subject Property.

HEARING

10Appearing before the Tribunal was the Applicant’s planning consultant Angela Sciberras, a land use planner and principal with Macaulay Shiomi Howson Ltd. The purpose of Ms. Sciberras’s attendance was to give oral evidence in support of the planning justification report she authored which was included in the Minor Variance application. There is no challenge as to Ms. Sciberras’s expertise to provide this Tribunal opinion planning evidence.

Provincial Policy Statement – 2020 (“PPS”)

11The Tribunal finds that the subject site is within an existing settlement area and the built boundary, which is to be the focus for growth. The requested Variances will permit a single two-storey dwelling, which will add to the orderly development of safe and healthy communities with a built form that is well designed.

Do the Variances meet the general intent and purpose of the OP?

Region of York Official Plan (2022) (“YROP”)

12The subject property is designated “Urban Area” on Map 1- Regional Structure of the YROP and is identified within the “Built Up Area” of the “Community Area” of the Urban System.

13The proposed development efficiently uses existing municipal infrastructure and represents appropriate intensification and redevelopment. Schools, employment opportunities and a broad range of commercial, institutional and community service uses are within walking distance of the site.

14The Tribunal finds that the relief sought through the Minor Variances will allow for a dwelling unit that conforms to the policies of the YROP, specifically, sections 2.1.3 (Community Areas); 2.1.4 (Built-up Areas) and 4.1.3 (b) (built-up areas with small scale intensification and infill).

Town of Newmarket Official Plan (“NOP”)

15The NOP designation for this site is “Residential Area”. It is located within the “Historic Core Character Area” on Schedule I of the Official Plan. The subject land is not designated under the Ontario Heritage Act.

16The NOP was amended by OPA 29, partially as a result of the completion of the Established Neighbourhoods Compatibility Study (ENCS). The ENCS was prepared in response to concerns arising from infill development within established residential areas which were considered to be incompatible within existing neighbourhoods. The ENCS identified the subject site as in the Historic Core Area with buildings generally developed prior to the 1940’s. The ENCS and Staff report note that the area is comprised of a range of building types and built forms.

17Ms. Sciberras explained that Staff relied on the statements contained within the ENCS and had not considered the application based on the specific neighbourhood it is located within or the unique characteristics of the site, having an approximately 4.0 m difference in elevation height between the subject site and the intersection of Botsford Street and Lorne Avenue. She stated that the existing house at 186 Lorne Avenue sits significantly higher, as do the existing houses which back onto the subject site from Park Avenue.

18The Tribunal was provided photographs which demonstrated the majority of existing dwellings in proximity to the subject site are 1 – 2 ½ storeys in height, with garages ranging from 0 – 3 cars which are comprised of a range of building types and built forms. Front yard setbacks vary from one dwelling to the next and that the topography of Newmarket varies across the Town creating unique building lots and situations resulting in similar developments to what is being proposed. The dwellings within the immediate area of the subject site include a variety of lot sizes, massing and design.

19Section 3.1.3 Development in Residential Areas speaks to compatibility with the physical character of the surrounding neighbourhood. The site will provide for a two-storey detached dwelling similar to many existing dwellings in the neighbourhood but at a lower elevation from adjacent properties due to the grade of the property. The proposed dwelling will not have a height higher than the majority of the houses in the immediate area and would not be noticeable or distinguishable as the roofline would be on a similar level to those in the surrounding neighbourhood.

20Section 3.8.1 Intensification allows for infill development through the construction of new residential dwellings and buildings on vacant land. The proposed development is a contextually-sensitive infill development, compatible with and complementary to the surrounding neighbourhood. The Variances optimize the use of existing municipal services, infrastructure and an additional residential unit in an area that will assist in supporting transit investments and is well serviced by transit.

21The Tribunal finds that the Variances, with the fulfillment of the conditions, maintains the general intent and purpose of the YROP & the NOP.

Do the Variances meet the general intent and purpose of the ZBL?

22The subject land is zoned Residential Detached Dwelling 15M Zone (R1-D) by Zoning By-law 2010-40. Single detached dwellings are permitted within the zone.

Variance #1: Section 6.2.2: The Maximum Building Height permitted is 8.5 m and 10.1 m is proposed.

23Section 6.2.2 of the Zoning By-law requires a maximum building height of 8.5 m. The proposed dwelling is a reverse walk-out design where the grade at the front of the dwelling is significantly lower than the grade at the rear or back of the property which will have a maximum height of 10.1 m.

24Through the design plans, the rear or back of the proposed dwelling measures 8.64 m in height. The Town’s definition of building height requires finished grade for single detached dwellings to be measured across the front of the house face between the side lot lines. Based on the surrounding topography, the dwelling will be higher than the dwelling to the west and south but lower than the adjacent dwellings to the east and north. The roof line will be similar to, and in keeping with, existing dwellings in the area and will not detract from the character of the neighbourhood.

25Photographs provided to the Tribunal indicated that within the Historic Core Area there are a number of 2 ½ storey heritage homes which exceed the maximum height provision. It was indicated that the proposed dwelling will be in keeping with the height of existing dwellings along Lorne Avenue and similar to a number of dwellings on Sherwood Place.

Variance #2: Section 6.2.2: Allow a proposed finished first floor height of 2.0 m where Zone Standards permit a finished first floor height of 1.2 m.

26Section 6.2.2 of the Zoning By-law requires a maximum Finished Floor Height of 1.2 m above the finished grade, measured across the front of the house face, between the side lot lines. The proposed dwelling will have a maximum first floor height of 2.0 m. The general intent of the maximum finished floor height is to avoid excessive dwelling heights. The proposed dwelling requires a higher finished floor height in order to enable at grade access at the rear of the dwelling, which is significantly higher than at the frontage, as well as to accommodate servicing connections to the street, and appropriate stormwater management and site drainage.

27In order to reduce the finished floor height, the Tribunal recognizes the entire site would need to be regraded in order to provide a more consistent elevation with the street line. This would require the site to be dug out and a significant retaining wall constructed around the perimeter of the property or alternatively, the basement would be reduced significantly, making the space virtually uninhabitable. The Tribunal recognizes the Variance for the finished first floor as being appropriate and desirable to ensure appropriate access from the rear of the dwelling to the rear yard and site servicing.

Variance #3: Section 6.2.2: Maximum driveway width of 6.0 m with the proposed dwelling having a maximum driveway width of 7.7 m

28Section 6.2.2 of the Zoning By-law requires a maximum Driveway Width of 6.0 m. The proposed dwelling will have a maximum driveway width of 7.7 m in order to allow for a three-car garage and associated driveway. The general intent of this provision is to ensure that appropriate soft landscaping is provided across the property frontage. The subject site has a larger than minimum required frontage; Botsford Street at this location is a dead end cul de sac, which provides access to three single detached dwellings only, including the subject site.

Variance #4: Section 4.2: Encroachments into Required Yards: Porch Step Encroachment: Maximum Permitted Encroachment into required Front Yard is 2.4 m and 5.57 m is proposed.

29Section 4.2 of the Zoning By-law (Encroachment into Required Yards) is to ensure porches and/or access stairs do not impede pedestrian traffic, obstruct, or block public sidewalks, views or cause negative impact. There are a number of stair risers required to access the front door and a landing is required. In order to accommodate the landing, the stairs will encroach into the front yard more than anticipated. The proposed stairs will be 1.93 m from the property line, whereas the Zoning By-law requires a minimum of 1.5 m to the property line. Further, the stairs are directed towards the driveway and will not impact the street frontage.

30The original site plan provided a straight run of stairs and met the setback; however, it was greater than 10 stairs in length, which is not desirable from a safety or aesthetic perspective; and does not support the Town’s Urban Design Guidelines which require a landing for more than 5 stairs. The stairs and porch are setback from the property line, providing room within the front yard for landscaping. Landscape stone and plant materials will be utilized to provide screening and visual interest.

31Given there is no public sidewalk at this location, and that the stairs are directed towards the driveway, there will no negative impact on the street frontage.

32The Tribunal finds that all the Variances requested, with the proposed conditions, maintain the general intent and purpose of the ZBL.

Are the Variances minor and desirable for the appropriate use or development of the land?

33The proposed increased dwelling height will not have a significant impact on surrounding dwellings as a result of the variation in existing topography. The roofline will be in keeping with existing dwellings in the neighbourhood.

34The increase in finished floor height allows for a useable basement, grading that reduces the use of retaining walls and ensures appropriate servicing connections.

35The proposed reduced front porch/stair setback is not anticipated to impact the ability of the property to provide adequate space for landscaping, drainage or access; and will allow for a safe and visually appealing access.

36The Tribunal finds that the proposed Variances are minor in nature and appropriate for the use of the land.

CONCLUSION

37From the evidentiary record, inclusive of maps, photographs and the testimony, the Tribunal was provided with a comprehensive overview of the subject site, the immediate and surrounding spatial context and, most particularly, the grade features of the Site.

38The Tribunal accepts and agrees with the unchallenged evidence of Ms. Sciberras that the Variances, with the proposed conditions, maintain the general intent and purpose of the OP and ZBL, are minor and are desirable for the appropriate use or development of the land.

39The Tribunal finds the proposed increased dwelling height will not have a significant impact on surrounding dwellings as a result of the variation in existing topography. The roofline will be in keeping with existing dwellings in the neighbourhood. The increase in finished floor height will allow for a useable basement and grading of the property for appropriate servicing connections and ensures appropriate access from the rear of the dwelling to the rear yard.

40The slightly larger driveway width will enable the provision of an additional garage and parking area while still providing significant landscaping. It will discourage cars being parked on the street and not impede access and egress for the neighbouring dwellings.

41The Tribunal finds the proposed reduced front porch/stair setback will not impact the ability of the property to provide adequate space for landscaping, drainage or access and will allow for a safe and more visually appealing access.

42The Tribunal also finds that the Minor Variances requested result in the use of the property that is consistent with the PPS and has regard to matters of Provincial interest under s. 2 of the Act. The Tribunal has had regard to the decision and information that was before the COA and the Town.

43Upon all of the evidence, and with the findings made, it is the Decision of the Tribunal that the Variances, subject to the proposed conditions, represent good planning and should be authorized.

ORDERS

44THE TIBUNAL ORDERS that the Appeal is allowed and the Variances to By-law 2010-40 are authorized subject to the following conditions:

a. The Owner makes satisfactory arrangements with the Town’s Planning Department and posts required securities in accordance with the Town’s Tree Preservation, Protection, Replacement and Enhancement Policy prior to the issuance of any building permit;

b. The Variances granted pertain only to the design as submitted with the development application;

c. The development be substantially in accordance with the information and drawings as submitted with the application; and

d. Failure to comply with and maintain the conditions imposed shall render the development approval null and void.

“D. Chipman”

D. CHIPMAN 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.