Hickey v Cambridge (City), 2024 CanLII 72559

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 25, 2024

CASE NO(S).: OLT-24-000434

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

Applicant/Appellant: Bill Hickey

Subject: Minor Variance

Description: To permit partially enclosed parking stall located beside the existing dwelling

Reference Number: A69/23

Property Address: 519 Hamilton Street

Municipality/UT: Cambridge/Waterloo

OLT Case No: OLT-24-000434

OLT Case Name: Hickey v Cambridge (City)

Heard: June 25, 2024 by Video Hearing

APPEARANCES:

Parties: Bill Hickey (“Appellant”)

Representative: Christine Schweertman

DECISION DELIVERED BY F. LAVOIE AND A. SNOWDON AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1Bill Hickey (“Appellant”) is appealing the decision of the City of Cambridge (“City”) Committee of Adjustment (“CoA”) to refuse the Appellant’s application for the following variance from Zoning By-Law 150-85 (“ZBL”):

a. A side yard carport addition with an interior side yard setback of 0.55m, whereas the ZBL requires a minimum of 1.2m [s.2.1.11.1 (b) (iii)].

2At the start of the Merit Hearing, the Appellant advised the Tribunal that the original proposal which was considered by the City’s planning staff in its planning report incorrectly stated the height of the carport as 17 feet (“ft”). The correct height of the carport as proposed is in fact 12 ft. To that effect, the Appellant filed an email (included in Exhibit 2) from Laura Dewar, Supervisor, Development Planning, confirming the correct height as being 12 ft. The Appellant also noted that a variance would also be required from s. 2.1.11 a), which states that no accessory building or structure shall be attached to the principal building nor located within one metre of the principal building.

3On July 17, 2023, the Appellant submitted his original application for the variance to the CoA. On February 07, 2024, the CoA refused the application, citing as its rationale that “the Committee considered staff’s recommendation, as well as oral and/or written comments from the applicant and/or delegates”.

VARIANCES REQUESTED

4The variances requested are as follows:

a. a side yard carport addition with an interior side yard setback of 0.55 m, whereas the ZBL requires a minimum of 1.2 m [S.2.1.11.1 (b) (iii)]; and

b. to locate the carport addition zero metres (0 m) from the principal building, whereas the ZBL states that 1m is required.

Parties and evidence

5Christine Schweertman attended the Hearing, representing the Appellant. The City had confirmed with the Tribunal in advance of the Hearing that it would not participate. There were no additional Party status requests. The Tribunal received one Participant status request from Al Snider. Mr. Snider provided his statement on behalf of a neighbour who could not attend the Hearing. The Tribunal granted Mr. Snider Participant status.

6The Appellant provided photo evidence (Exhibit 1 and Exhibit 2) and submissions on whether the proposal met the Legislative test. The Tribunal reviewed this evidence, as well as the municipal submission (Exhibit 3), which included the City Planning Staff Report (“planning report”) for the original proposal.

7The Tribunal also heard evidence from the Appellant, Bill Hickey, as a lay witness, providing additional context as to his proposal.

SUBJECT SITE AND CONTEXT

8The Subject Property is located at 519 Hamilton Street in the City of Cambridge. There is an existing single-detached dwelling on the property and the Subject Property is surrounded by similar single-detached homes. It is zoned R4 by the ZBL.

9The Appellant’s proposed carport would be located on his driveway, between his single-detached dwelling and the property line with a neighbour. According to the Appellant, the distance between the single-detached dwelling and the property line is approximately 14.8 feet.

Appellant’s position and Section 45(1) of the Planning Act

10The Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Planning Act (“Act”) when making a decision regarding a minor variance (“MV”) application. Under s. 3(5) of the Act, the Tribunal’s decision on the MV must be consistent with the Provincial Policy Statement, 2020 (“PPS”).

11When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Act, to determine if the requested variance:

1. maintains the general intent and purpose of the Official Plan (“OP”);
2. maintains the general intent and purpose of the ZBL;
3. is desirable for the appropriate development or use of the land; and
4. is minor in nature.

12All four elements must be satisfied.

General Intent and Purpose of the Official Plan

13The planning report stated that the policies of the OP promote and encourage different forms of residential intensification within the City of Cambridge, including the construction of accessory structures. Further, staff were satisfied that the reduced setback for a side carport is within the general intent and purpose of the OP, and that applying accessory structure standards to a building addition with accessory function has no impact on the OP. The Tribunal finds that this analysis applies both to the original proposal and the revised proposal.

General Intent and Purpose of the Zoning By-law

14The planning report explained that the intent of the ZBL in regulating side yard setbacks is to ensure adequate spatial separation between abutting residential properties for privacy, access, maintenance, drainage and amenity. Planning staff concluded both that “the reduced side yard setback will sufficiently maintain adequate distance from neighbouring properties and proper access to the rear yard” and that the proposal “[failed] to meet the general intent of the ZBL in regulating building setbacks”.

15Throughout its analysis, the planning report identified the height of the structure, 17 ft, as having a greater impact than accessory structures limited to 4.5 m in height (or 14.76 ft). Given the accessory structure’s correct height of 12 ft, the Tribunal finds that previous concerns related to the impacts of the structure’s height no longer apply to this proposal. Accordingly, the Tribunal finds that the general intent and purpose of the ZBL is maintained.

Desirable for the Appropriate Development or the Use of Land

16The planning report considered that, because a single parking stall is defined in the ZBL as having a width of 2.9 m (or 9.5 ft), a total structure width of 3.96 m (or 13 ft) would not be necessary to accommodate a single parking stall. As a result, staff were of the opinion that the variance was not desirable for the appropriate development and use of the lot, since a single enclosed parking stall would not require a variance to the side yard setback.

17The Appellant testified that the width of his vehicle with one door open was 11.5 ft. The Tribunal is persuaded that a width of at least 11.5 ft is more appropriate for a partially enclosed carport than the definition of a single, unenclosed, parking stall in the ZBL. The Tribunal agrees with the Appellant’s submission that the variance is desirable for the appropriate development or use of the land given these circumstances.

4. Is Minor in Nature

18The planning report stated that the reduction of the interior side yard setback “appears to be significant in impact and scale, with a building mass that more closely resembles an extension of the structure of the primary dwelling than the limited height of an accessory structure which would be limited to 4.5 m in total building height.” As previously noted, since the revised proposal is for a carport with a height of 12 ft (3.66 m), the Tribunal finds planning staff’s concerns relating to height no longer apply.

19The Tribunal heard evidence from the Appellant that the carport was modular, insofar as it could be installed with varying dimensions. In other words, the width of the carport is flexible.

20With regards to the impact of the reduced interior yard setback, the Tribunal finds that a reduction to/reducing the setback to 0.55 m would have an undue impact on the neighboring property, and therefore not be minor in nature. Having been presented evidence that at least 11.5 ft is required for the carport to accommodate the Appellant’s car with one open door, the Tribunal finds that a carport 12 ft in width will both allow for a functional carport and a greater setback from the property line of 0.85 m. The Tribunal is satisfied that this greater interior yard setback of 0.85 m, whereas the ZBL requires 1.2 m, is minor in nature.

Distance from the principal building

21The planning report did not consider this variance in its analysis. The Tribunal notes that, unlike the side yard setback, impacts, if any, arising from a reduction in distance between an accessory structure and a principal building, would be restricted to the Appellant’s property. Mr. Snider’s concerns were also restricted to the variance of the side yard setback. The Tribunal is satisfied that this uncontroversial variance satisfies all four elements of s. 45(1) of the Planning Act.

FINDINGS

The Tribunal accepts the evidence of the Appellant and, where applicable, the land use planning evidence contained in the City’s planning report, and finds that the requested variances have regard for the Provincial interests expressed in s. 2 of the Planning Act, are consistent with the Provincial Policy Statement, 2020, and satisfy all four elements of s. 45(1) of the Planning Act.

ORDER

22THE TRIBUNAL ORDERS that the appeal is allowed, in part, and the following variances to the City of Cambridge’s Zoning By-Law 150-85 are authorized:

a. a side yard carport addition with an interior side yard setback of 0.85m, whereas the ZBL requires a minimum of 1.2 m [S.2.1.11.1 (b) (iii)]; and

b. to locate the carport addition zero metres (0 m) from the principal building, whereas the ZBL states that 1 m is required.

“F. Lavoie”

f. laVoie

MEMBER

“A. Snowdon”

A. SNOWDON

MEMBER

Ontario Land Tribunal

Website: 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.