Hoat The Hoang v. King (Township), 2024 CanLII 89442

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 9, 2024

CASE NO(S).: OLT-24-0005000

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

Applicant/Appellant: Tuyet Thi Tran and Hoat The Hoang

Subject: Minor Variance

Description: to permit existing cabana and shed and widening of driveway

Reference Number: A-24-02

Property Address: 41 Wilkie Avenue

Municipality/UT: King/York

OLT Case No: OLT-24-000500

OLT Lead Case No: OLT-24-000500

OLT Case Name: Hoat The Hoang v. King (Township)

Heard: July 26, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Tuyet Thi Tran and Hoat The Hoang

Self Represented*

Township of King/York

Tome Halinski

MEMORANDUM OF ORAL DECISION DELIVERED BY George politis ON JULY 26, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION & BACKGROUND

1The matter before the Tribunal was a Hearing to consider a Settlement 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 Township of King (“City”). The Appeal has been filed by Tuyet Thi Tran and Hoat The Hoang (“Appellant/Applicant”) regarding the property located at 41 Wilkie Avenue, Nobleton, Township of King (“Subject Property”).

2The Subject Property is zoned Residential - Single Detached (‘R1’) Zone (Exhibit 1, page 164, Tab 21, Zoning Map) of the Township of King Zoning By-law 2016-71 (“ZBL”) (Nobleton Urban Area). The Subject Property is comprised of a single residential parcel and is located within the southwest quadrant of the settlement area of the Village of Nobleton. The Applicant seeks to permit an existing cabana, shed and the widening of a driveway. As such five (5) variances are being requested for the already “as built” structures. A detailed list of the variances as provided at (EXHIBIT 1 page 67 Tab No. 12- March 14, 2024, Report to CoA) of this Decision.

3The Planning Division for the Township of King, prepared a Staff Recommendation Report detailing the particulars of the Application supported and with a planning analysis of applicable policy in review of the development proposal. The Planning Division Staff Report was presented for consideration by the COA and recommended approval to Variance Nos. 1, 2, 3, 4 and refusal to Variance No. 5.

4The COA Meeting was held on March 20, 2024, to consider the MVA and included were five (5) written submissions from the community in objection to the Application. There were concerns raised regarding the negative impacts of the aesthetics, water drainage and water absorption of the concrete driveway. Concerns were raised concerning the paving of ground and greenery having a negative impact on the character of the neighborhood. There were questions relating to whether the intention of the large concrete patio was for personal use or for a rentable outdoor space. The CoA’s decision approved variances 2. and 4. and refused/denied variances 1., 3. and 5 (EXHIBIT 1 Tab No. 14, March 20, 2024).

5There were no requests for Party status.

PROPOSED VARIANCES

6The Applicant is proposing to be granted relief from the MVA to permit the already “as built” accessory structures which include an existing cabana, shed, and a widened driveway on the Subject Property.

Five (5) variances being requested are as follows:

1. Relief from Section 3.2.2 a) to permit a decrease in minimum interior side yard setback from 3.6 metres (“m”) to 1.64 m.
2. Relief from Section 3.2.2 a) to permit a decrease in minimum interior side yard setback from 3.6 m. to 1.85 m.
3. Relief from Section 3.24 d) to permit a decrease in uncovered patio from side lot line from 0.6 m. to 0.40 m.
4. Relief from Section 4.4.2 b) to permit an increase of driveway width at the street line from 6 m. to 7.65 m.
5. Relief from Section 4.4.2 c) to permit the width of the driveway (23.77 m) to be greater than the width of the attached private garage (9.02 m).

LEGISLATIVE FRAMEWORK

7This Hearing 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 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.

8In addition, s. 3 (5) of the Act requires the Tribunal’s Decision to be consistent with Provincial plans, including Policy Statement, 2020 (“PPS”), The Growth Plan for a Greater Golden Horseshoe (2020).

9The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the 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

10The following are marked as exhibits for the Hearing:

• (Exhibit 1) Document Book
• (Exhibit 2) Witness Statement of Mr. Gordon Dickson
• (Exhibit 3) Schedule of Conditions

11The Tribunal qualified and affirmed Mr. Dickson to provide opinion evidence in Land Use Planning after a thorough review of his Curriculum Vitae and Acknowledgement of Expert Duty.

12Mr. Dickson provided the Tribunal with a high-level overview of the Appeal, and shared the overall description of the Subject Property and its current Zoning. Mr. Dickson went on to testify that the Subject Property is comprised of a single residential parcel (generally rectangular in shape) with approximate lot frontage of 29.63 m and approximate lot area of 2,175.59 m2 (0.2 hectares/0.53 acres) and are located within the southwest quadrant of the settlement area of the Village of Nobleton.

13Mr. Dickson explained that the existing development includes a two-storey detached dwelling and accessory structures i.e. cabana, pool equipment shed and garden shed. The existing cabana is located toward the rear (northeast corner) of the property to the west of the existing garden shed which is located at a minimal setback to the lot line. An inground swimming pool is also located approximately mid-way back in the rear yard and in close proximity to the interior side (north) lot line.

14Mr. Dickson continued with his testimony describing how the Subject Property also includes a large portion of uncovered patio, which is comprised of an area of concrete pavers situated within the rear portion of the property along both sides extending off the driveway and hardscaped area in the front yard.

15Mr. Dickson’s testimony regarding the four tests under s. 45 (1) of the Act, are stated as follows:

General intent and purpose of the Official Plan

Variances 1 to 4

16Mr. Dickson testified that the Subject Property is designated Established Neighborhood to Schedule D2 (Village of Nobleton Land Use Designations) of the OP as amended. Permitted uses within the ‘Established Neighbourhood’ designation include Low Density residential uses, including single detached dwellings and group homes as well as uses, buildings and structures that are accessory to permitted uses. Mr. Dickson stated that the existing buildings and structures on the Subject Property generally conform to the intent and purpose of the OP. Mr. Dickson testified that the existing driveway width is also in general conformity with the intent and purpose of the OP.

17Mr. Dickson testified that the Development Engineering staff have recommended a condition of approval for the completion of the Hard Landscaping Exemption Approval process, which will require the preparation of a Stormwater Management Report and Grading Plan. Mr. Dickson testified that the existing “as-built” cabana and existing garden shed have side yard setbacks that maintain the intent of the OP.

Variance 5

18Mr. Dickson testified that Section 3.3.4 (e) of the Township of King Village Urban Design Guidelines recommends that driveway widths should not exceed the width of the garage. Mr. Dickson acknowledged that the required conditions would also reduce the existing overall driveway width to be compatible with the width of the attached garage. This would also introduce some ‘softscaping’ into the front yard (i.e. planting strip) as set out in (EXHIBIT 3) in Schedule A of this Decision, further maintaining the intent of the OP.

General intent and Purpose of the Zoning By-law

Variance 2 and 4

19In the case of Variance 2, Mr. Dickson explained that in accordance with Section 3.2.2 (a) of ZBL, no accessory building or structure shall be built closer to the front lot line or side lot line than the minimum distance required by the ZBL. The existing accessory structure (cabana) is situated at a minimum setback from the interior (north) side lot line maintaining the general intent of the ZBL. In regard to Variance 4, Mr. Dickson testified that the maximum permitted width of a driveway in any Residential Zone shall be 6.0 m, as measured at the street line, in accordance with Section 4.4.2 (b) of the ZBL. Mr. Dickson testified that the conditions requested by the City in the proposed settlement will allow the width of the driveway to comply with and maintain the general intent of the ZBL.

Variance 1

20Mr. Dickson in his evidence went on to say that the intent of maintaining a minimum side yard setback is in part, to provide adequate distance between land uses to avoid potential land use conflicts. This will ensure the ongoing maintenance and access to other areas of a property. They also include and provide sufficient area for the conveyance of stormwater run-off and/or infiltration. For these reasons conditions have been requested as part of the proposed settlement regarding a Hard Landscaping Exemption Permit Application, that once approved, will mitigate the setbacks and maintain the general intent and purpose of the ZBL.

Variance 3

21Mr. Dickson explained that the minimum required setback to the lot line of an uncovered patio is intended to provide for the adequate drainage and conveyance of stormwater and to allow for the balance between soft and hard landscaping. A minimum setback is also intended to provide for sufficient space for access and maintenance to a yard. Mr. Dickson testified that one of the conditions requests the design for the conveyance or infiltration of stormwater. This will require the approval of a Hard Landscaping Exemption Permit Application through a separate process further maintaining the intent of the ZBL.

Variance 5

22Mr. Dickson stated, in accordance with Section 4.4.2 (c) of the ZBL, the maximum permitted width of a driveway on a lot within any Residential Zone shall not exceed the width of the attached or detached private garage. Mr. Dickson explained that the staff recommendation to refuse Variance No. 5 as part of the original Planning Division Staff Report (March 2024) was in part, related to the existing driveway width not being consistent with the intent of the zoning provision to balance neighbourhood character. Mr. Dickson pointed out in his evidence that the applicant has previously confirmed via email, dated, June 28, 2024, the acceptance of the Towns proposal for a settlement includes the delineation of the driveway area from the front yard and front entrance area, thereby satisfying Planning Division staff’s original concerns with the proposed driveway width which will maintain the general intent of the ZBL.

Desirable for the Appropriate Development or use of Land, Building or Structure

Variances 2 and 4

23In the case of variance 2, Mr. Dickson testified that the existing garden shed is located in the northeast corner of the rear yard of the Subject Land. Access into and around the garden shed for ongoing maintenance is provided. Visual impact to neighbouring properties is anticipated to be minimal as the existing building complies with the maximum permitted accessory building height in the ZBL. Mr. Dickson concluded in his evidence that the variances are desirable and appropriate for land use and development.

24In the case of variance 4, Mr. Dickson testified that relative to the frontage of the lot, this portion of the additional driveway width is not anticipated to affect the provision of adequate on-street parking. Mr. Dickson went on to say that it is generally consistent with the driveway configurations existing in the immediate vicinity. As a result, visual and character impact arising from the additional driveway width is minimal. In reviewing the Application, Development Engineering staff have recommended as a condition of minor variance approval, that the existing driveway be required to obtain an Entrance Permit in accordance with the Township’s Road Occupancy/Road Closure By-law. Mr. Dickson stated that these approvals in the proposal for the settlement will result in desirable and appropriate uses of the land.

Variance 1

25Mr. Dickson provided evidence for the existing “as-built” cabana and verified that it is visually screened from the adjacent neighbouring rear yard (north) by a row of existing vegetation and fence line. He went on to say that the Visual impact to the rear (east) is further mitigated by the existing garden shed (located to the east (rear) of the existing cabana) and to the opposite side yard (south). This provides a gradual slope of grade away from the existing cabana structure toward properties to the south. The “as-built” structure complies with the maximum permitted height within the applicable zoning. It should be noted that there are conditions in the proposed settlement for the completion and approval of the Hard Landscaping Exemption Permit Approval process which has been recommended through the Development Engineering Division which will support the variance to be desirable and appropriate for development and use of the land.

Variance 3

26Mr. Dickson provided evidence with regards to the uncovered patio area emphasizing the use of the rear yard residential amenity area, which includes an inground swimming pool. The uncovered patio area represents ground-oriented development that will not present visual impacts in terms of height and obstruction of views. The uncovered patio is an existing (“as built”) condition. Mr. Dickson stated that the applicant will require approval for a Hard Landscaping Exemption Permit Application, which will include the submission and approval of a new stormwater management brief and grading plan to include as a condition in the proposed settlement resulting in the desirable and Appropriate Development for the use of the Land.

Variance 5

27Mr. Dickson pointed out in his evidence that the applicant has previously confirmed via email, dated, June 28, 2024, the acceptance of the proposed settlement. This includes the delineation of the driveway area from the front yard and front entrance area, thereby, satisfying Planning Division staff’s original concerns with the proposed driveway width. The details of the agreed upon conditions to the application are marked (EXHIBIT 3). Mr. Dickson stated that these conditions fulfil the use of the land to be Desirable and Appropriate for Development.

Variances are Minor

28Mr. Dickson opined that the relative cumulative land use impacts are anticipated to be minimal. The “as-built” condition of the accessory buildings and structures has demonstrated that relative adverse effects arising from the location of the structures in their existing settings or the width of the driveway are minimal. There are no visual impacts to abutting properties. Mr. Dickson stated that all the variances collectively are minor in nature.

FINDINGS

29The Tribunal is satisfied with the evidence provided by Mr. Dickson, through his uncontroverted testimony, that all of the minor variances individually and collectively have satisfied the four tests identified under s. 45 of the Act, and that the variances have proper regard for matters of Provincial interest and are consistent with the PPS, the Growth Plan as well as its representation for good planning. 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 variances to Zoning By-law No. 2016-71 under Sections 3.22a, 3.24d, 4.4.2b, and 4.4.2c of the Township of King (Nobleton Urban Area) to permit existing cabana and shed and widening of driveway outlined in (EXHIBIT 3) to this Decision, are authorized subject to all of conditions listed below:

1. That the Plans submitted for a Building Permit shall be in substantial Conformity with the Site Plan prepared for the MVA, except as revised in accordance with condition 5.
2. That the Plans submitted for an Entrance Permit shall be in substantial Conformity with the Site Plan prepared for the MVA, except as revised in accordance with condition 5.
3. Applicant has an approved Stormwater Brief and Grading Plan under Hard Landscaping Exemption Permit 2023-HP023. The as constructed hard landscaping does not comply with the approval. The property owner shall be required to submit a revised Application with new Stormwater Brief and Grading Plan which will need to be peer reviewed by the Township’s external consultant at the property owner’s cost. The deadline for receipt of a revised approval shall be no later than Monday, September 2, 2024, and all approved low impact development works to be completed and certified by the Professional Engineer by Tuesday, October 15, 2024.
4. Entrance Permit to be obtained.
5. The approval be conditional on construction being in conformity within the following and substantially as shown on the attached Schedule of Conditions (Exhibit 3) as follows:

• A concrete cut of driveway (minimum width of 1.5 m) and perpendicular to the direction of travel;
• Planting of strip of trees and/or shrubs within the concrete cut of no less than 1.0 m in height and no more than 1.0 m spacing between each tree/shrub to be placed to delineate the driveway and front entrance; and,
• An opening in the proposed planting strip of a maximum width of 1.5 m for a walkway.

“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.

SCHEDULE A

EXHIBIT 3

OLT-24-000500