Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 09, 2024
CASE NO(S).: OLT-23-000812
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Wybe Bylsma
Subject: Minor Variance
Description: Increasing coach house floor space
Reference Number: A 05-23
Property Address: 48 Park Street
Municipality/UT: Town of Cobourg
OLT Case No.: OLT-23-000812
OLT Lead Case No.: OLT-23-000812
OLT Case Name: Bylsma v. Cobourg (Town)
Heard: November 3, 2023 by video hearing
APPEARANCES:
Parties Wybe Bylsma
Representative Self-represented
DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1Wybe Bylsma (“Applicant”) applied to the Committee of Adjustment (“COA”) of the Town of Cobourg (“Town”) for minor variances to permit an increased floor space in his Coach House, located at 48 Park Street (“Subject Property”) in the Town.
2The COA denied the application and the Applicant appealed the decision to the Tribunal.
SUBJECT PROPERTY
3The Subject Property is located on the northeast corner of Park and George Streets and contains the eastern half of a semi-detached dwelling as well as a Coach House. It has a lot area of approximately 581 square metres (“sq. m”) and fronts onto Park Street with a frontage of 19.06 metres (“m”) and an average depth of 30.06 m.
4The Subject Property is:
a) surrounded by residential one- to two-storey dwellings;
b) located within the Built Boundary of the Urban Area of Cobourg, as shown in the County of Northumberland Official Plan (“COP”)
c) designated Stable Residential Area within the Town of Cobourg Official Plan (“OP”);
d) zoned Residential Three (R3) in Comprehensive Zoning By-law No.085-2003, as amended; and
e) subject to the George Street Heritage Conservation District Plan.
BACKGROUND AND VARIANCES SOUGHT
5In July 2022, the Applicant (through Application A-15-2022) obtained minor variances (“Original Variances”), subject to various conditions, from the COA to permit the construction of the Coach House. These variances permitted an:
a) increase of the permitted lot coverage of the accessory structure from a maximum of 8% to 14.4%; and
b) increase of the Total Livable Area as a percentage of the Principal Dwelling from 40% to 42.4%.
6The Original Variances were not appealed by the Applicant or any third parties and are not before the Tribunal.
7In March 2023, the Town (at the direction of their solicitor) entered into an agreement with the Applicant that prohibited habitable space in the loft and basement to meet the conditions of the COA decision. The agreement, which restricted the second floor from having heating/cooling, was reviewed by the Owner and their solicitor with no concerns expressed; however, a subsequent building inspection determined that heating and cooling were, in fact, being installed on the second floor.
8Since that time, the Applicant applied to the COA for additional variances (through Application A-05-23) to permit the second storey to become habitable for the purposes of a second bedroom.
9The variances as identified in the Staff Report to the COA, dated July 18, 2023 (“Planning Report”) and authored by Tim Cane, a Registered Professional Planner on behalf of the Town’s Planning and Development Department, are listed as follows:
Amend Condition 1 from the decision of application No. A-15-2022 to read “The existing basement of the Coach House (east unit) to be used solely for storage and servicing uses.”; and
Permit a total livable area in the Coach House of no more than 112 sq. m (less than 71% of the living area of the principal dwelling) contained entirely on the ground floor and second floor.
10The Tribunal has determined that only the second variance (as identified in paragraph [9]) is required. The Tribunal will refer to that variance as the “Current Variance” henceforth. It is noted that should the Tribunal deny the Current Variance, the Coach House has existing approvals through the Original Variances (which are not before the Tribunal) and the use would still be permitted in its current form, subject to the previous conditions.
LEGISLATIVE FRAMEWORK
11As found in s. 45(1) of the Act, four tests must be considered when evaluating a minor variance application:
a) Does the Variance meet the general intent and purpose of the Official Plan;
b) Does the Variance meet the general intent and purpose of the Zoning By-law;
c) Is the Variance minor in nature; and
d) Is the Variance desirable for the appropriate development or use of the land, building or structure.
12In addition, s. 3(5) of the Act requires that decisions of the Tribunal be consistent with the Provincial Policy Statement, 2020 (“PPS”) and must conform or not conflict with any other applicable provincial plans, which in this case would be A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality or approval authority and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.
STATUS REQUEST
13The Tribunal received one request for Party status from Deborah Hogan, a neighbour whose property (46 Park Street) is adjacent to the Subject Property. The Tribunal provided an outline of the rights and responsibilities of a Party at the Hearing.
14In her written request and at the Hearing, Ms. Hogan identified that the Coach House is four feet from her fence and eight feet from her house. She highlighted concerns regarding the reduction in sunlight and invasion of privacy as well as the increase in the square footage of the Coach House from 42.4% to the proposed 70.71%. Ms. Hogan also outlined concerns related to the siting and height of the Coach House, its lack of discreetness and lack of fit within the Heritage neighbourhood as well as the unpermitted removal of mature trees. The Tribunal confirmed that Ms. Hogan did not intend to call any witnesses during the Hearing.
15Upon review and consideration, the Tribunal determined that Ms. Hogan’s participation as a Party would not assist in the efficient adjudication of the matter, particularly as she would not be calling any land use planning witnesses. The Tribunal considered it appropriate, in the alternative, to grant Participant status to Ms. Hogan, which enables her concerns to be presented in writing. The materials submitted in her request for Party status were considered as her Participant statement which the Tribunal marked as Exhibit 3 and reviewed in its deliberations.
16In advance of the Hearing, and confirmed at the Hearing, the Tribunal was informed that the Town, as directed by its Council, would be attending to monitor the proceedings, but would not be seeking Party Status, calling any witnesses or cross-examining any witnesses. In the event that the Tribunal allows the appeal and authorizes the variance, the Town proposed several conditions for the Tribunal’s consideration.
HEARING
17Mr. Bylsma was self-represented and did not call any witnesses at the Hearing. The Tribunal opted to affirm Mr. Bylsma as a lay witness as this approach enabled the Tribunal to hear and separate any factual evidence from his submissions.
18To assist the Tribunal, the Town submitted a Document Book containing pertinent documents from the Referral Record, including (but not limited to) the Planning Report.
19The Tribunal received and marked the following documents as Exhibits to the Hearing:
Exhibit 1: Referral Record
Exhibit 2: Municipality Document Book
Exhibit 3: Participant Statement of Deborah Hogan
20Mr. Bylsma read a statement which had also been submitted to the Tribunal as part of his Appellant Submissions form (found in Exhibit 1). He highlighted the current housing crisis, the need for additional housing units and the government’s focus on same and encouraged a common-sense approach. He also referred to the Planning Report which recommended approval of the proposal to permit habitable space on the second floor.
21Mr. Bylsma stated that the proposal does not result in any changes to the exterior of the building. He emphasized that the design of the Coach House met the requirements of the Heritage District, including the gambrel roof design which provided extra space which he wanted to use as more than storage, hence the application to permit habitable space on the second floor. It was his position that the proposal met the required tests and should be approved.
ANALYSIS
22The Tribunal notes that the Town did not seek Party status in opposition to this Appeal.
23As there were no expert witnesses called to provide land use planning opinion evidence, the Tribunal closely reviewed the materials provided to it by the Town in the Referral Record (Exhibit 1) which contained 30 documents including the Planning Report.
24The Tribunal recognizes that the Planning Report has recommended approval of the application with conditions. Although this does not qualify as expert evidence, the planning overview, opinions and recommendations of Town Staff are of assistance in considering the four tests of a minor variance, outlined at paragraph [11].
25The Tribunal notes that the conditions proposed in the Planning Report could help to mitigate the impact of any increased usage of the second floor if it was deemed habitable space. It is also noted that the Town has subsequently requested revision of one of the conditions to require that a minimum of 50% of the bottom of the second floor window facing east be screened with a permanent external architectural feature that prevents views into the neighbouring rear yard.
Applicable Legislative Tests
26The Planning Report provides a detailed analysis of each of the four tests of a minor variance and concludes that each test is met, subject to the recommended conditions. The Tribunal has reviewed the full report and does not dispute the position of the Town Planner that the proposal meets the four tests of a minor variance under the Act, nor was any expert evidence presented at the Hearing to dispute that position.
27The Planning Report also puts forward the position that the approval of the proposal would “represent good planning and provide additional housing options for the Town.”
FINDINGS
28After a thorough review of the Municipal Record, including the Planning Report, the Tribunal similarly finds that the proposed Current Variance, subject to the conditions (outlined below in paragraph [31]) meets the general intent of the OP, meets the general intent of the Zoning By-law, is minor in nature and is desirable for the appropriate development or use of the land, building or structure.
29The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act and, in general, regard for the related decision of the COA. The Tribunal did not have any evidence to suggest that the proposal is inconsistent with the PPS or that it did not conform to the GP. The Tribunal is satisfied that the proposed Current Variance, which will provide additional housing options in an appropriate location, represents good planning and is in the public interest.
30The Tribunal will generally impose the conditions that were proposed in the Planning Report, with the subsequent adjustment put forward by the Town as described in paragraph [25].
ORDER
31The Tribunal Orders that the appeal is allowed and the variance to permit a total livable area in the Coach House of no more than 112 sq. m (less than 71% of the living area of the principal dwelling) to be contained entirely on the ground floor and second floor is authorized subject to the following conditions:
a) A minimum of 50% of the bottom of the second-floor window facing east is to be screened with a permanent external architectural feature that prevents views into the rear yard of 46 Park Street. Such feature shall be to the satisfaction of the Municipality;
b) A landscaped private open space, dedicated solely to the occupants of the accessory dwelling unit, of not less than 45 square metres is to be provided to the rear of the accessory dwelling unit and include the planting of a canopy tree with a trunk diameter not less than 50 mm at time of planting, to the satisfaction of the Municipal Arborist;
c) The existing gravel driveway serving the accessory structure will have a maximum width of 5.5 metres and be located no closer than 1.8 metres to the common boundary with 46 Park Street;
d) The landscaped area between the driveway and common boundary with 46 Park Street is to contain an evergreen vegetative screen, with coniferous trees of at least 1.8 m in height when planted, to the satisfaction of the Municipal Arborist;
e) Prior to a building permit being issued for the revisions to the second storey of the coach house, the Owner is required to obtain written approval from the Municipal Arborist for any trees that were removed or are proposed to be removed for the construction of the coach house in accordance with Tree Preservation By-law #020-2006 to the satisfaction of the Municipality;
f) The existing basement of the Coach House (east unit) is to be used solely for storage and servicing purposes; and
g) The Municipality shall have the authority to clear all conditions.
“S. Bobka”
S. BOBKA 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.