Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 12, 2024
CASE NO(S).: OLT-23-001264
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Mike and Rosanna Faught
Subject: Minor Variance
Description: To permit a pool, enclosure, and shed
Reference Number: A0096/2023
Property Address: 90 Windsor Crescent
Municipality/UT: Greater Sudbury/Sudbury
OLT Case No.: OLT-23-001264
OLT Lead Case No.: OLT-23-001264
OLT Case Name: Faught v. Greater Sudbury (City)
Heard: July 3, 2024 via Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Mike and Rosanna Faught | Self-Represented* |
| Greater Sudbury/Sudbury | Stephen Watt |
MEMORANDUM OF ORAL DECISION BY G. POLITIS ON JULY 3, 2024, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is a Settlement (“Settlement”) Proposal for an appeal relating to a Minor Variance Application (“MVA”) pursuant to s. 45 (12) of the Planning Act (“Act”), resulting from the denial of the MVA at the Committee of Adjustment (“COA”), in the City of Greater Sudbury (“City”). The Appeal has been filed by Mike and Rosanna Faught (“Applicant”) regarding the property located at 90 Windsor Crescent (“Subject Property”).
2The Applicant is proposing to install an in-ground pool with an enclosure and to construct a pool house on the Subject Property providing front yard setbacks at variance to the Zoning By-law (“ZBL”). The Subject Property is zoned R1-5 (Low Density Residential One).
3The Subject Property currently has a single detached dwelling unit. The Subject Property is an irregularly shaped lot (triangle at a corner) in a residential neighbourhood.
PROPOSED VARIANCES
4The following below are the proposed variances to support the ZBL for the proposed development by the Applicant to the City of Sudbury By-law No. 2010-100Z (Exhibit 1 page 21 Exhibit G) and are as follows:
For a pool enclosure in the front yard, maintaining a front yard setback of 0.0 meters (“m”) and consisting of a fence with a maximum height of 1.2 m, where fences higher than 1.0 m are not permitted within the required front yard;
For a front yard setback of 1.0 m for the pool and 0.6 m for the pool house, where a minimum front yard setback of 6.0 m is required; and
For a 1.2 m high opaque fence to be installed commencing at a point 3.0 m south of the northeast corner of the shared lot line with 100 Windsor Crescent, running in a westerly direction in a perpendicular fashion until it meets the front lot line of the Subject Property.
LEGISLATIVE FRAMEWORK
5This Settlement proposes to authorize all the Variances, and the Tribunal must be satisfied that each of the Variances as set out in s.45(1) of the Planning Act:
Maintain the general intent and purpose of the Official Plan;
Maintain the general intent and purpose of the Zoning By-Law;
Are desirable for the appropriate development or use of the land, building or structure; and,
Are minor in nature
6In addition, s. 3(5) of the Planning Act requires the Tribunals Decision to be consistent with policy statements and Provincial plans, including the Provincial Policy Statement, 2020.
7The Tribunal must also have regard to matters of Provincial interest as set out in s. 2 of the Planning Act, as well as the Decision of the COA and the information considered in the course of making its Decision, as set out in s. 2.1(1) of the Act.
HEARING EVIDENCE AND SUBMISSIONS
8The Tribunal qualified and affirmed Ms. Bailey Chabot to provide opinion evidence in Land Use Planning following a careful review of the witness’s Curriculum Vitae and the respective Affidavit and Acknowledgement of Experts’ Duty. The Tribunal marked the Affidavit of Service as Exhibit 1.
9Ms. Chabot provided the Tribunal with a high-level overview of the Appeal and shared the description of the Subject Property and its current Zoning (Exhibit 1, pages 4-5). As it related to the primary issues of concern, Ms. Chabot shared the following information with regards to the location of the fence along the property line at the bend of Windsor Crescent as illustrated in (Exhibit 1. Page 13):
Staff were of the opinion that the fence obstructs the sightline of vehicles, particularly for the driveway at the adjacent property, known Municipally as 100 Windsor Crescent. Staff were of the opinion that it was not consistent with the Traffic Association of Canada's Geometric Design Guide for Canadian Roads; and
Staff were concerned that the proposed development would create life safety issues.
10Ms. Chabot’s testimony regarding the four tests under s. 45 (1) of the Planning Act, are stated as follows:
Test 1: Do the proposed variances conform to the general intent of the City of Greater Sudbury's Official Plan (“OP”)?
a. The OP designates the Subject Property as Living Area 1 Policy 1. The Living Area Designations permits low density housing.
b. Policy 3 states that "New residential development must be compatible with the existing physical character of established neighbourhoods, with consideration given to the size and configuration of lots predominant built form. It also includes building setbacks, building heights and other provisions applied to nearby properties under the Zoning By-law.”
c. Objective b. of 11.0 Transportation identifies "the transportation network provides safe, convenient, and efficient and effective movement for all people and goods in Greater Sudbury."
11Ms. Chabot went on to explain that the intent of the OP is to permit low density development such as single detached dwellings including accessory structures. Some examples are decks, pools, gazebos, and ancillary to the permitted Low Density Residential in the area of the Subject Property.
12Ms. Chabot explained that the MV’s are needed in order to permit the ancillary pool and pool house. Ms. Chabot stated that the character of the surrounding neighborhood must be considered. Ms. Chabot’s evidence went on to explain that the location of the Subject Property at the end of the inside bend on Windsor Crescent (Exhibit 1 page 14); means that useable, outdoor space is within the front yard, north of the dwelling. Ms. Chabot explained that no other property on Windsor Crescent has the front yard as their only useable yard for ancillary uses.
13Ms. Chabot described how the general characteristics of the Subject Property would remain as Low Density Residential in nature, consistent with adjacent parcels.
14With regards to the height of the fence, Ms. Chabot confirmed that the City had acknowledged the variance regarding the fence’s height. Ms. Chabot stated that in her professional opinion, that all the variances conform to the general intent of the OP.
Test 2: Do the proposed variances maintain the general intent of ZBL No. 2010-100Z?
15Ms. Chabot stated that the standards requiring relief from the ZBL are described in detail in (Exhibit 1, Exhibit G page 21), and include:
i. Part 4, Section 4.2, subsection 4.2.3, Table 4.1
a) Permit a fence greater than 1.0 m. in the required front yard;
b) Permit a front yard setback of 0.0 m. for a fence greater than 1.0 m; and
c) Permit a fence greater than 1.0 m. in the required front yard.
ii. Part 6, Section 6.3, Table 6.2
a) Permit a front yard setback of 1.0 m. for the inground swimming pool and 0.6 m. for the pool house.
16Evidence from Ms. Chabot included that the intent of the ZBL is to ensure appropriate development standards. Ms. Chabot explains that the general intent for the requirement of the front yard setbacks is to ensure that the structures are located a safe distance from the traveled portion of the road allowance. Ms. Chabot explains that the residential dwelling remains the main use on this portion of the lot.
17Ms. Chabot went on to say that given the location of the dwelling at the southern portion of the lot, the only useable yard for ancillary uses is the front yard north of the existing dwelling. Given that this portion of the Subject Property functions as the private yard, it was in Ms. Chabot’s professional opinion that the location of the ancillary uses were appropriate.
18With regards to the location and height of the fence, Ms. Chabot noted that staff acknowledged the City’s Pool Enclosure By-law No. 2016-91, and was satisfied that the fence meets the following:
a) Surrounds the entire swimming pool area;
b) Is no less than 1.2 m in height; and,
c) Is generally opaque due to the nature of the safety design requirements.
19Ms. Chabot stated that with regards to Pool Enclosure By-law No 2016-91, City staff are of the opinion that the variances are compliant and appropriate. Ms. Chabot stated that other factors included the limited yard space and the fact that there are no other suitable locations on the subject parcel. Ms. Chabot further acknowledged that the height and location were also reviewed and accepted by expert traffic staff as consistent with the Traffic Association of Canada's Geometric Design Guide for Canadian Roads. Ms. Chabot concluded by stating that in her professional opinion, all the variances conform to the general intent of the ZBL.
Test 3: Are the proposed variances desirable for the appropriate development of the lands in question?
20Ms. Chabot explained the development of an ancillary use (pool and pool house) would be consistent with the character of the area which includes residential uses and uses accessory thereto. Ms. Chabot stated that in her professional opinion, these variances are desirable for the appropriate development of the lands in question. Ms. Chabot stated that the variances were consistent and compatible with the public interest and the neighbouring area.
Test 4: Are the proposed variances minor in nature?
21Ms. Chabot went on to explain the interpretation of what is minor is not necessarily based on the extent to which the ZBL is varied, rather it is based on whether the impact of the variance can be considered minor. In review of the proposed MV’s, Ms. Chabot confirmed that City staff have reviewed whether to consider the variance minor based on the existing characteristics of the neighbourhood.
22Ms. Chabot went on to say that the proponent's requested variances are considered minor in nature, as the proposed form of development is not anticipated to have any negative impacts on the surrounding land. Additionally, the request to build a pool within the front yard is necessitated by the location of the house on the lands. As such, the impact of the proposal can be minor in that it would be in keeping with the residential character of the area. Ms. Chabot stated that in her professional opinion the variances are minor in nature.
FINDINGS AND CONCLUSION
23Based on the uncontroverted evidence of Ms. Chabot through her statement and oral testimony, the Tribunal was satisfied that the four tests identified under the Planning Act have been established.
Do the variances maintain the general intent and purpose of the OP?
24The Tribunal is satisfied with the evidence reflecting the conformity of the low-density housing Living Area designations including the compatible existing physical character of the neighborhood. With regards to the OP’s provision of safe movement and the design guides to vehicular and pedestrian movement, the City has accepted the location of the fence.
Do the variances maintain the general intent and purpose of the ZBL?
25The Tribunal is satisfied with the evidence provided by Ms. Chabot with regards to the structures located in a safe distance from the front yard setbacks. In this case, the pool and pool structures are located in the only usable yard for ancillary uses, which is the front yard.
Are the variances desirable for the appropriate development or use of the land, building or structure?
26The Tribunal is satisfied with Ms. Chabot’s evidence regarding the development of an ancillary use (pool and pool house). Ms. Chabot’s evidence provided a consistency with the character of the area which includes residential uses and uses accessory thereto. Also, the Tribunal is satisfied that the variances are desirable for the appropriate development of the lands in question.
Are the variances minor in nature?
27The Tribunal is satisfied with the evidence presented by Ms. Chabot establishing that the variances are minor due to the front yard being necessitated by the nature of its location. The Tribunal is satisfied that the proposed form of development did not reflect any negative impacts on the surrounding land.
28Based on all the evidence before/considered, the Tribunal concurs with the terms of the Settlement, between the Parties.
ORDER
29THE TRIBUNAL ORDERS THAT the Appeal is allowed and the variances to Zoning By-law No. (2010-100Z) in the City of Sudbury are authorized. There are no conditions.
“G. Politis”
G. POLITIS
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.