Marc Sajecki v. City of Kingston, 2024 CanLII 79151

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 14, 2024

CASE NO(S).: OLT-24-000416

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

Applicant/Appellant: Marc Sajecki

Subject: Minor Variance

Description: To facilitate detached additional residential unit (ARU) within existing detached garage in rear yard

Reference Number: D13-005-2024

Property Address: 51 Alwington Avenue

Municipality/UT: Kingston/Frontenac

OLT Case No: OLT-24-000416

OLT Lead Case No: OLT-24-000416

OLT Case Name: Sajecki v Kingston (City)

Heard: July 2, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Marc Sajecki	Spencer Putman
City of Kingston	Jenna Morley
John Curtis	Self-Represented*
Doug Cowie	Self-Represented*

MEMORANDUM OF ORAL DECISION DELIVERED BY YASNA FAGHANI JULY 2, 2024 AND FINAL ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal concerns an Appeal filed by Marc Sajecki (“Applicant/Appellant”) against the decision by the City of Kingston (“City”) Committee of Adjustment (“CoA”) to refuse an application (“Application”) for a minor variance pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”), as amended.

2The subject property, municipally known as 51 Alwington Avenue in the City of Kingston (“Subject Property”), is a single detached dwelling with a detached garage in the rear yard. Currently, the Subject Property contains five (5) bedrooms rented by students. The Applicant seeks to convert the existing detached garage into a 3-bedroom dwelling as an additional residential unit (“ARU”), resulting in eight (8) bedrooms on the Subject Property. As such, six (6) variances are being requested including changes to the parking spaces, the walkway accessing the ARU, the size of the interior set back and lot coverage, and fencing. A detailed list of the variances is provided at Schedule A of this decision.

3The application was filed with the City, and according to the Staff Planning Report dated March 18, 2024, the City was in support of the Application subject to conditions. In addition to the staff report, the CoA heard and received written submissions from neighbours concerning lack of parking, traffic, safety, privacy, and inability for emergency services to access proposed units amongst other issues.

4The CoA denied the Application, finding that the variances do not meet one of the four tests, and, are not cumulatively minor in nature.

5On April 5, 2024, the Applicant filed an Appeal before this Tribunal. There were no issues raised regarding the Administrative Notice of this Hearing dated May 13th, 2024 and filed as Exhibit 1.

6The Tribunal received and reviewed a number of Participant Statements. Two of the Participants, John Curtis and Doug Cowie, sought Party status at the Hearing. Mr. Curtis resides at 44 Alwington Avenue and Mr. Cowie resides at 50 Alwington Avenue. After hearing submissions from both individuals, and upon no objection from the Applicant or the City, the Tribunal granted Party Status to Mr. Curtis and Mr. Cowie. Participant Status was granted to the individuals maintaining their Participant Status.

7For the reasons that follow, the Tribunal finds that the Appeal should be allowed, and the minor variance authorized with the conditions as discussed below.

RELIEF SOUGHT

8The Applicant requires a minor variance to permit the conversion of the existing large, detached garage in the rear yard of the Subject Property to an ARU with three bedrooms, a dining and living area, kitchen, laundry and bathroom.

9The minor variance is required to obtain relief from the minimum parking requirement and to recognize existing deficiencies in performance standards of the proposed ARU.

HEARING

10The Applicant’s Book of Documents was marked as Exhibit 2.

11The Tribunal acknowledged Minutes of Settlement filed by the Applicant prior to the Hearing and marked as Exhibit 3. The City confirmed the Settlement Documents and it agreed to the settlement of the minor variances, with conditions, discussed later in this decision.

12The Tribunal heard uncontroverted viva voce evidence from Mr. Miles Weekes of Fotenn Planning and Design, who was qualified as an expert in land use planning. His Curriculum Vitae and Acknowledgement of Expert Duty are part of Exhibit 2.

LEGISLATIVE TEST

13With respect to minor variance, s. 45 (1) of the Act, the Tribunal must be satisfied that the requested variances:

a. maintain the general intent and purpose of the regional Official Plan (“OP”) and the City OP;

b. maintain the general intent and purpose of the zoning by-law;

c. are minor in nature; and

d. are desirable for the appropriate development or use of the land, building or structure.

14Further, the Tribunal must be satisfied that the variance is also consistent with the Provincial Policy Statement, 2020 (“PPS”) and have regard to matters of Provincial interest, as well as the decision of the Approval Authority and the information that was before it.

ANALYSIS AND FINDINGS

Provincial Policy Statement, 2020

15Mr. Weekes testified that PPS s. 1.1 and its subsections, speak to efficient and resilient development and land use patterns. According to Mr. Weekes, under the PPS a mix of land uses is permitted, and the ARU within a settlement area would contribute to the range of houses available and would not require the expansion of services. He opined that the proposed ARU was consistent with the PPS.

16Mr. Curtis cited various provisions in the PPS in which there are references to “safety” when considering whether a development proposal is consistent with the PPS. He submitted that an ARU would likely present more traffic and more street parking, and that there would be the need to watch out for children playing on the street. However, no evidence was proffered regarding the unsafe nature of an ARU. In addition, Mr. Curtis questioned Mr. Weekes regarding the lack of a traffic study in support of the Application. In response, Mr. Weekes said that, in his experience, traffic studies were not commonly conducted nor required for a minor variance application.

General Intent and Purpose of the Official Plan

17Mr. Weekes testified that the Subject Property is a two-storey residential dwelling with a detached garage. The Residential designation under the OP supports the proposed ARU as it would be compatible with the surrounding uses, would not impact the functioning of the Subject property (a parking space will be available on site after demolition of a mud-room of the principle dwelling to accommodate the parking space), and no changes have been requested to the footprint nor height of the existing garage. Mr. Weekes opined that the proposed developments in line with the general intent of the OP.

General Intent and Purpose of the Zoning By-law

18Mr. Weekes testified that the Subject Property is zoned Urban Residential and that the zoning permits ARUs where permitted uses include single detached dwellings. He submitted that each of the variances requested meet the intent of the zoning by-law as follows:

Parking and walkway (Variance 1, 2, 3)

19The Kingston Zoning Bylaw 2022-62 (“By-law”), requires two (2) parking spaces on the Subject Property when converting the garage to an ARU; that the parking space be 6 metres by 5.5 metres with a minimum driveway width of 6.7 meters; and a requirement of a walkway that is separately delineated and measured distinctly from a required driveway so that a vehicle must not park on top of any part of the walkway.

20According to Mr. Weekes, the request to decrease the parking space from two to one is desirable because the ARU is within 600 metres walking distance to transit stops, commercial uses and open space uses, as required in the OP. Additionally, the location of the ARU, along with a designated bicycle parking, would facilitate opportunities for transit use, therefore minimizing the effects of decreased parking spaces. Furthermore, the request to decrease the minimum width of the drive aisle accessing the perpendicular parking space from 6.7 to 3 meters is necessary to recognize the unique nature of the property and the intended use of the parking space. Mr. Weekes said with only one parking space proposed on site, the drive aisle will only need to support one-way traffic through the drive aisle. Also, “no parking” signs will be implemented along the length of walkway so as to ensure the walkway will not be obstructed and that cars will not block the walkway.

20On cross-examination, Mr. Curtis submitted that under s.2.1 of Ontario Regulation 299/19 under the Act, tiled “Additional Residential Units”, one parking space is mandatory for each ARU and its occupant. Mr. Weekes was questioned on his understating of this regulation and the impacts of the requested variance. Mr. Weekes testified that the Mr. Curtis is not incorrect; however, the rest of the regulation and subsections should be considered. Both Mr. Weekes and counsel for the Applicant were able to point to sections of the Regulation and the Bylaw, which persuaded this Tribunal that the request seeking to vary the parking requirement in the Bylaw was appropriately before the Tribunal and met the tests under the Act.

ARU interior set back and lot coverage (Variance 4 and Variance 5)

21Mr. Weekes testified that the request to decrease the required minimum interior side yard of the ARU from 1.2 metres to 0 metres and the requested increase of the lot coverage from 10 % to 14% are technical in nature. The requirements would recognize the existing nature of the garage, which is intended to be converted to an ARU. According to Mr. Weekes, the ARU would be compatible with the existing structures in the neighbourhood.

Privacy (Variance 6)

22The Bylaw requires a 1.8-metre privacy fence along all interior lot lines and rear lot lines adjacent to the rear yard. Mr. Weekes testified that the request to permit a a privacy fence along the rear lot line, with no privacy fence along the northern interior lot line and the southern interior lot line of the ARU is mainly to address concerns raised by neighbours. These concerns related to potential encroachment of the fence on others’ properties as well as possible damage to various tree roots. Mr. Meeks further testified that the ARU would have no windows at the southern wall, therefore avoiding privacy concerns.

Desirable for the Appropriate Development use Lands

23Mr. Weekes testified that the requested variance is desirable for the appropriate use of the lands as it represents appropriate infill, and adds a new development that it is simply the conversion of an existing garage to a liveable dwelling. The ARU would help to add housing and represents moderate intensification as well as promote the use of an underutilized structure.

24Both Mr. Curtis and Mr. Cowie submitted that the development of this ARU implies more students living on the subject property, and that those students would have cars, thereby increasing the number of incidents in which illegal parking would ensure causing havoc and resulting in by-law officers continuously being called. The Tribunal finds these assertions speculative.

25Counsel for the Applicant argued that Mr. Curtis and Mr. Cowie’s submissions related to the potential type of users and how they would use the land. There is an assumption that students would be living in the ARU; however, Counsel argued the ARU could eventually be used by a family. In short, Counsel submitted that “people zoning” should not be a consideration for the Tribunal. The consideration should be whether the proposed development of land is desirable. The Tribunal agrees. Based on the evidence of Mr. Weekes, the Tribunal is satisfied the ARU is desirable for the appropriate development use of the land.

Variances are Minor

26The Tribunal is satisfied that the variance sought is minor in nature and will not cause undue adverse impact on the abutting properties nor on the neighbourhood in general. There is no evidence before the Tribunal to demonstrate any adverse impacts with respect to traffic, parking nor with respect to noise.

PROPOSED CONDITIONS TO THE MINOR VARIANCE APPLICATION

27In the Minutes of Settlement, several conditions to the minor variances were proposed. Mr. Weekes testified that he had reviewed all of the conditions and agreed with all of said conditions.

FINDINGS

29The Tribunal is satisfied by the evidence provided by Mr. Weekes, through his uncontroverted testimony, that all of the minor variances individually and collectively have satisfied the four tests outlined in s. 45 of the Act, and that the proposal has proper regard for matters of Provincial interest and is consistent with the PPS and applicable policies. The Tribunal finds that the totality of evidence before the Tribunal supports the authorization of the minor variances.

ORDER

30THE TRIBUNAL ORDERS that the Appeal is allowed and the minor variance to Zoning By-law No. 2022-62, to permit the conversion of the detached garage to an ARU with the variances outlined in Schedule A to this Decision, are authorized, subject to all of conditions listed below:

1. Limitation: that the approved variance applies only to the proposed detached additional residential unit on the drawings attached schedule B of this Decision.

2. No Adverse Impacts: The Applicant shall demonstrate to the satisfaction of the City that there are no adverse impacts on neighbouring properties as a result of any modifications to onsite grading or drainage.

3. Building Permit Application Requirements: The Applicant shall provide to the Building Services a copy of the decision of the CoA, together with a copy of the approved drawings, when they make an application for a Building Permit. The drawings submitted with the Building Permit application must, in the opinion of the City, conform to the general intent and description of the approved drawing(s), including any amendments and conditions approved by the CoA, as stated in the decision. It must be noted that additional planning approvals may be required should further zoning deficiencies be identified through the Building Permit application process.

4. Standard Archaeological Condition: In the event that deeply buried or previously undiscovered archaeological deposits are discovered in the course of development or site alteration, all work must immediately cease and the site must be secured. The Archaeology Program Unit of the Ministry of Citizenship and Multiculturalism (archaeology@ontario.ca) and City of Kingston’s Planning Services (613-546-4291, extension 3180) must be immediately contacted. In the event that human remains are encountered, all work must immediately cease and the site must be secured. The Kingston Police (613-549-4660), the Office of the Chief Coroner as a part of the Ontario Ministry of the Solicitor General (1- 877-991–9959), the Archaeology Program Unit of the Ministry of Citizenship and Multiculturalism (archaeology@ontario.ca) and City of Kingston’s Planning Services (613-546-4291, extension 3180) must be immediately contacted.

5. Parking: The Owner shall provide, install, and maintain “no parking” signs along the driveway leading to the rear parking area to ensure the required 1.2metre walkway providing access to the detached ARU remains unobstructed, to the satisfaction of Planning Services staff.

6. Civic Addressing: The Owner will be required to apply for a D20 Civic Addressing Application through the City’s Development and Services Hub online portal.

7. Forestry: The [Applicant] will be required to submit a Tree Permit application to address tree preservation requirements for the City-owned tree in the boulevard area. Tree preservation requirements and/or conditions will be addressed through the permit.

8. Windows: No windows shall be permitted along the south building wall of the detached ARU, so as to mitigate the potential for overlook on the neighbouring property to the south.

“Yasna Faghani”

YASNA FAGHANI

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.

Schedule A

1. Variance Number 1: To permit 1 parking space instead of the required 2 parking spaces.

2. Variance Number 2: To permit 3 metres by 6 metres parking space with a 3 metre (“3-metre”) driveway width instead of the required 6 metres by 5.5 metres with a minimum driveway width of 6.7 meters.

3. Variance Number 3: To permit a portion of the walkway to overlap with the driveway instead of the requirement of a walkway that is separately delineated and measured distinctly from a required driveway so that a vehicle must not park on top of any part of the walkway.

4. Variance Number 4: To permit 0 -metre interior setback instead of the required 1.2 metres.

5. Variance Number 5: To permit 14% lot coverage of the ARU instead of the required 10% maximum lot coverage.

6. Variance Number 6: To permit a 1.8-metre privacy fence along the rear lot line, with no privacy fence along the northern interior lot line and the southern interior lot line where an existing accessory structure is located instead of the requirement of a 1.8-metre privacy fence along all interior lot lines and rear lot lines adjacent to the rear yard.

Schedule B