Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 01, 2024
CASE NO(S).: OLT-23-000752
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Andrea La Rosa
Subject: Minor Variance
Description: Requested a variance to accommodate a proposed 2 storey addition/attached garage
Reference Number: A14/23
Property Address: 900 Tiny Beaches Rd S.
Municipality/UT: Tiny Township
OLT Case No.: OLT-23-000752
OLT Lead Case No.: OLT-23-000752
OLT Case Name: La Rosa v. Tiny Township
Heard: October 12, 2023 by Video Hearing
APPEARANCES:
Parties
Representative
A. La Rosa C. La Rosa
A. La Rosa
DECISION DELIVERED BY S. GOPIKRISHNA AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Appeal arises from the refusal of a variance by the Committee of Adjustment (“COA”) of the Township of Tiny (the “Township”) under Section 45(12) of the Planning Act, with respect to the Application submitted by Andrea La Rosa and Claudia La Rosa (the “Appellants”), requesting the approval of two variances, to enlarge their house at 900 Tiny Beaches Road South (the “Site”), in the Township of Tiny. One of the variances concerned a reduced side yard setback, while the other requested for an increase in the Floor Space Index (“FSI”) of the house. The COA heard their application on July 4, 2023, and approved only one of the variances, respecting the FSI, while refusing the other variance, respecting the side yard setback, subject to the imposition of conditions.
2The Appellants appealed the COA’s decision on July 24, 2023, to the Ontario Land Tribunal (the “Tribunal”), which scheduled a Hearing by way of videoconference at 10 a.m. on October 12, 2023. On August 30, 2023, the Township’s Municipal Council resolved that it would not participate in the Hearing of the Appeal before the Tribunal and communicated the same to the Applicants.
3The only Party in attendance at the Hearing held on October 12, 2023, were the Appellants; it is important to note that there were no Participant Status requests. Given that the Appellants were community members representing themselves, and did not retain a lawyer, the Tribunal deemed it appropriate to provide an explanation of how the Proceeding could be expected to unfold, with an emphasis on how the burden of proof rested with the Appellants as a result of the de novo nature of the Hearing. The Tribunal also emphasized that the Appellants were required to provide evidence in support of each and every variance during the course of the Proceeding, including any variances that were previously approved by the COA.
VARIANCES BEFORE THE TRIBUNAL
4The Subject Site is zoned Shoreline Residential (SR) under By-law No. 22-075 of the Township. The relief requested by the Applicants, as stated in their Appeal, is the approval of the following variances:
- The minimum interior south side yard setback is 3 metres (“m”), whereas the width of the proposed interior south side yard setback proposed is 1.97 m.
- The maximum lot coverage is 25% X Lot Area, whereas what is proposed at the Subject Site is 28% X Lot Area.
EVIDENCE FROM THE APPELLANTS
5Mr. La Rosa, one of the Appellants, (“Representative”) said that he would speak to the Tribunal on the behalf of the Appellants and was affirmed by the Tribunal before giving evidence. The Representative provided an account of how his family bought the property at the Site in 2007 and wanted to improve the “curbside look” of the house, which resulted in the design of an attached garage to the existing house. The Representative stated that the new attached garage addressed the family’s indoor storage requirements and would allow for watercraft to be stored indoors, “out of harsh weather conditions”. The planned second floor above the attached garage would not have any HVAC nor plumbing, because it is intended to be used for storage purposes and as a workshop.
6Describing the layout of the Site, as illustrated in Diagram 1 in this Decision, the Representative said that the lot area is 1,090 square metres (“sq m”) and has “close to 18 metres (“m”) of frontage facing Georgian Bay”. The Site is flanked by residential addresses 898 Tiny Beaches Road South to the north and 902 Tiny Beaches Road South to the south, while Tiny Beaches Road lies to the east of the Site, and the Georgian Bay Shoreline lies to the west. The Representative then discussed the “limitations” on the design of the attached garage because of the need to maintain a “15 feet separation” from the location of the septic system filter bed on the Site, at its north end. The Representative stated that he had been advised “that there are no options to build the garage any further north to accommodate the zoning by-law requirement of a 3 m interior side yard setback”. The Representative claimed that, as a result of this restriction, the Appellants had to request for a 1.97 m minimum interior side yard setback at the south of the house, instead of the requisite 3 m setback. If the variance is approved, then the Appellants will remove the sheds at the back of the property, facing the shoreline, and, as a result, there will be 2.3 m of unobstructed access from the roadway to the backyard and shoreline.
DIAGRAM 1 - LAYOUT OF THE SITE
7The Appellant referred the Tribunal to “similar variances” that had been approved by the COA in the neighbourhood, including:
- A reduction in the front yard setback at 74 Centre Beach Road from 8 m to 7.91 m, as well as a reduction in the interior side yard setback at the west of the house from 3 m to 1.5 m, as per the decision of the COA dated February 6, 2023.
- A reduction in the minimum interior side yard setback and abutting lane at 398 Tiny Beaches Road South from 3 m to 2 m, as a result of a decision made by the COA made on April 3, 2023.
- A reduction in the required minimum interior side yard setback at 896 Tiny Beaches Road South from 2.3 m to 1.69 m, and an increase in the maximum lot coverage from 25% to 36%, as the result of a COA decision made on May 2, 2022.
8The Appellant then referred to the Staff Report (“Report”) respecting the Subject Site, dated June 8, 2023, authored by Sandra Mattson, a Senior Planner with the Township. The Appellant read excerpts from the Report, which discussed the ability of the proposed variances to meet the intent and purpose of Zoning By-law NO. 22-075 of the Township. The Report specifically stated that the intent of the minimum interior side yard setback is “to provide sufficient maintenance, access and separation from property lines”. It also pointed out that “as such, the existing dwelling is already ‘non-conforming’ to the zone standards because the northerly side yard setback is 0.58 metres away from the south property line, which is less than the recommended 3 metres”. The Report was concerned that the proposed two-storey garage, if approved as requested, would occupy “a significant portion of the south side of the property, and encroach into the required 3 metre setback”. The Report also expressed concerns “about accessing the backyard as a result of the encroachment into the side yard at the south of the property” and concluded that “an approval of the variance for the side yard setback, would make it difficult to access the backyard for maintenance purposes”. Based on this concern, the Report concluded that the reduced side yard setback could not satisfy the intent and purpose of the Zoning By-law, while simultaneously failing the tests of minor and appropriate development.
9The Representative explained that the side yard at the south of the house is 153 sq m in area, as illustrated in Diagram 2 (which appears later in this Decision), and that the encroachment into the side yard as a result of the approval of the requested variance, would be restricted to 9 sq m, which meant that 144 sq m would still be available for accessing the backyard, as also illustrated in Diagram 2. He added that the neighbour residing at 902 Tiny Road South, whose property bordered the side yard in question, was amenable to helping the Appellant by bringing in equipment for maintenance of the back yard of 902 Tiny Road South. In addition, the Appellant also read from a letter written by Bradley Payne, owner of Blue Jay Homes, a company that built many houses in the neighbourhood, which asserted that the reduced setback of 1.97 m, would still provide an “ample amount of room to have any machines such as an excavator, skid steer, front end loaders etc. to fit through the side yard in order to access the beach”. The same letter also asserted that “the township does not use the residents’ yards to access the beach anyhow” and used beach access point for maintenance, based on the company’s experience of working with the Township for more than 13 years.
10The Representative then expanded on the idea of accessing the backyard of the house from the beach and said that, notwithstanding the significant costs for servicing the back yard through beach-based access points, it still remained a viable and practical solution to accessing and servicing the backyard. On the basis of this evidence, he argued that the side yard would not have to be relied upon for maintenance purposes, as stated in the Report, before asserting that the side yard setback would provide a sufficient buffer between neighbouring houses and would consequently satisfy the intent and purpose of the By-law.
DIAGRAM 2 - INFORMATION ABOUT THE SIDE YARD, AND HOW IT CAN BE USED TO ACCESS THE BACKYARD, AS PER A DIAGRAM PROVIDED BY THE APPELLANTS
11The Representative highlighted how no more than 6% of the 100 sq m of the area of the side yard would be inaccessible if the reduced side yard setback were approved and concluded that, because no new built form was being introduced into the neighbourhood and given the lack of any impact on the neighbouring houses, the request for the reduced side yard setback satisfied the test of minor development, as well as the test of appropriate development. He noted that the Township’s planner had agreed that the proposal met the test respecting the Township’s Official Plan (“OP”) in its Report and did not delve further into this variance.
12Speaking to the variance for the increase in FSI, the Representative said that he was in agreement with the reasoning of the Report with respect to coverage, and read out excerpts from the same. The Report stated the Application satisfies the Provincial Policy Statement (“PPS”), as well as the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Report stated that the Site is classified as “Rural Lands” on the basis of definitions found in higher-level provincial policies and asserted that the proposed recreational uses are consistent with the PPS’ focus on resource-based recreational development, as found in Policies 1.1.5.2 and 1.6.6.4 of the PPS. The Report discussed how the emphasis on recreational uses is also found in Policy 2.2.9.3 (b) of the Growth Plan and therefore satisfied the latter. The Report then discussed how the County of Simcoe envisioned the concept of development of Rural Lands and encouraged development of what exists on the ground. On the basis of the Appellants looking to expand and develop the existing house, the Report concluded that the OP is also satisfied, in addition to the County of Simcoe’s Official Plan (“County’s OP”). The Report discussed how the intent of the maximum lot coverage requirement is to provide sufficient open landscape areas, driveways/parking access and front yard streetscapes, before noting that the Site is surrounded by existing residential properties, zoned Shoreline Residential (SR). The Representative noted that the survey identifies an existing lot coverage of 21% of the Lot Area, while what is allowed under the existing By-law is 25% of the Lot Area, before reiterating various examples of houses in the neighbourhood which have been approved for 28% of the Lot Area or more, as requested in the variance before the Tribunal. The Representative therefore said that he agreed with the conclusions in the Report, which stated that the proposed increased lot coverage satisfies the intent and purpose of the OP. as well as the Zoning By-law. The Representative added that the variance is desirable for the appropriate development of the lot by expanding on what already exists on the ground, through adding an attached two-storey garage with an entrance. He also agreed with the Report’s conclusion that the variance met the test of minor development because of the lack of adverse impact on the neighbourhood.
ANALYSIS AND DECISION
13The Tribunal relies on the following submissions and evidence to arrive at findings regarding this Appeal:
- The Report presented by the Township demonstrates how the variance respecting the requested increase in lot coverage satisfies the higher-level provincial policies, the County’s OP, and the OP because all Policies are supportive of resource-based rural development.
- The variance requesting for an increase in FSI of 28% X Lot Area, is supported in the Township’s Report. The Tribunal agrees that the variance for an increase in FSI maintains the general intent and purpose of the applicable Official Plans and the Zoning By-law No. 22-075, as amended, because both provide for single detached dwellings, including accessory buildings and structures. The built form and use of the extension requested by the Appellants are already present in the neighbourhood, on the basis of which the Tribunal finds that the variance satisfies the test for appropriate development. The test respecting minor development is premised on the concern of unacceptable adverse impact, which is satisfied in this case because there is no demonstration of unacceptable adverse impact. As a result, the Tribunal approves the variance respecting the requested increase in lot area coverage because it satisfies all four tests under Section 45.1 of the Planning Act.
14With respect to the variance requesting a reduction in the south side yard setback from 3 m to 1.97 m, it is important to note that the Report did not state any concern about the requested variance’s ability to maintain the intent and purpose of the two applicable Official Plans, namely those of the Township of Tiny, and the County of Simcoe. In the absence of any contrary opinion, and based on the factual evidence, the Tribunal finds that the requested reduced side yard setback provides adequate separation between adjacent houses and therefore satisfies the intent and purpose of the applicable Official Plans.
15The Report expressed concerns about the ability of the reduced side yard to satisfy the intent and purpose of the Zoning By-law with respect to maintenance, before relying on this concern to conclude that neither the tests of appropriate nor minor development could be satisfied. However, the Report makes a generic reference to “maintenance equipment” in this context, without stating the details of the equipment, including its size or how frequently it has to be used for maintenance. Given that the Township chose not to proffer evidence at the Proceeding before the Tribunal, there was no evidence to support its concern about the practical implications of the reduced side yard setback on accessing the backyard, even if the Report’s concerns about access are accepted in theory.
16While it is important to note that the Appellant’s evidence was that it is possible to obtain the assistance of the neighbours to access the backyard of his property through accessing the latter’s property, the Tribunal is persuaded that there is a viable alternative to accessing the backyard of the Site through using the lake shore for maintenance purposes, which suggests that there is little justification for the Township’s objection to the side yard setback. The Tribunal finds that the requested side yard setback of 1.97 m helps satisfy the requisite performance standard, which is to provide adequate space and privacy between adjacent dwellings and, consequently satisfies the purpose and intent of By-law 22-075.
17Given that similar variances have been granted by the COA to reduce the side yard setback in the vicinity of the Site, the Tribunal finds that the approval of the reduced side yard setback variance at the Site will not result in a novel built form, on the basis of which it determines that the test of appropriate development is satisfied. It accepts the Representative’s argument that there is no unacceptable adverse impact resulting from the approval of the reduced side yard setback, resulting in the side yard setback satisfying the test of minor development. The Tribunal therefore finds that the requested reduced side yard setback for 1.97 m satisfies all the four tests under Section 45.1 of the Planning Act and should be approved.
18The Report from the Township recommended that the following conditions be imposed on the approval of the variances:
- That the Applicant(s)/Owner(s) acknowledge and are aware that this variance approval is not an approval of the sewage system or requirements in the Ontario Building Code.
- The Applicant(s)/Owner(s) are advised that for new buildings or additions a Lot Grading Plan, in compliance with the Township Lot Grading procedure, is required at the time of building permit application.
19When the Tribunal discussed these conditions with the Appellant, the latter said that he understood the conditions and would comply with the same, since they did not cause any onerous pressure. However, the Tribunal holds that the purpose of the imposition of conditions is to identify concrete actions which need to be completed to facilitate the implementation of the approved variances. The condition requiring the Appellant to acknowledge that the approval of the variance does not amount to an automatic approval of the sewage system, reads more as advice, for the Appellants’ edification, rather than as specific, actionable items. As a result, the Tribunal finds that this condition does not have to be included in the Order. It imposes the second suggested condition, which requires that a Lot Grading Plan, compliant with the Township’s Lot Grading Procedure, has to be included in the application for a building permit.
ORDER
20THE TRIBUNAL ORDERS THAT the Appeal is allowed, and the following variances are approved:
- The minimum interior south side yard setback is 1.97 metres.
- The maximum lot coverage is 28% X Lot Area
21The variances authorized in Paragraph 20 above are subject to the following condition:
- The Applicant(s) are required to submit a Lot Grading Plan, in compliance with the Township of Tiny’s Lot Grading procedure, along with their building permit application.
“S. Gopikrishna”
S.GOPIKRISHNA 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.