Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 29, 2025
CASE NO(S).: OLT-24-000852
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Mario Glavina
Subject: Minor Variance
Description: To facilitate construction 2-storey dwelling with attached garage
Reference Number: A22-24
Property Address: 30 Viking Drive
Municipality/UT: Grimsby/Niagara
OLT Case No: OLT-24-000852
OLT Lead Case No: OLT-24-000852
OLT Case Name: Glavina v Grimsby (Town)
Heard: October 28 and November 22, 2024 by Video Hearing and November 28, 2024 closing submissions in writing
APPEARANCES:
Parties
Mario Glavina
Counsel
Samantha Lampert
Town of Grimbsy
Laura Dean
DECISION DELIVERED BY YASNA FAGHANI AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal concerns an Appeal filed by Mario Glavina (“Applicant/Appellant”) against the decision by the Town of Grimbsy’s (“Town”) 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 30 Viking Drive in the Town (“Subject Property”), is a 2-storey detached dwelling. The Applicant was previously provided a building permit to construct a dwelling on the Subject Property. The original permit contemplated the re-use of the existing foundation and implementation of the built form and built form features. During the construction, it was discovered that the existing foundation was in a state of disrepair and new foundation was required to be installed. This change resulted in the project changing from a renovation to a new build and therefore triggered the need for the minor variance application. The proposed variances are to legalize the construction of the single detached house on the Subject Property.
3The four requested variances are as follows:
a. Reduce minimum front yard setback from 10.85 metres to 7.1 metres;
b. Reduce rear yard setback from 7.7 metres to 7.0 metres;
c. Increase lot coverage from 25 percent to 32 percent; and,
d. Increase rear yard projection from 0.5 metres to 0.7 metres to allow for a chimney breast.
4The Neighbourhood has a mix of low-rise residential houses which range from 1-2 storey detached dwellings. There is a mixture of historic and newer built forms of varying sizes, styles and features. Given the age of the Neighbourhood, new builds and renovations are apparently common in this Neighbourhood.
5The application was filed with the City, and according to the Staff Planning Report dated July 1, 2024, the Town planning Staff was in support of the Application subject to conditions. In addition to the Staff Report, the CoA heard and received written submissions from neighbours with concerns regarding the height of the dwelling, lot coverage and loss of privacy. The CoA ultimately denied the Application.
6On August 2, 2024, the Applicant filed an Appeal before this Tribunal. There were no issues raised regarding the Administrative Notice of this Hearing dated August 30, 2024 and filed as Exhibit 1. The Tribunal did not receive any Party or Participant Status Requests, and no one appeared at the Hearing requesting Party of Participant Status.
7For the reasons that follow, the Tribunal finds that the Appeal should be allowed, and the minor variances authorized with the conditions as discussed below.
HEARING
8The Applicant’s Book of Documents was marked as Exhibit 2. The Town’s Book of Documents was marked an Exhibit 3.
9The Tribunal qualified the following witnesses to provide expert opinion evidence in the area of land use planning: Stephanie Matveeva, on behalf of the Applicant, and Allan Ramsay, on behalf of the Town.
LEGISLATIVE TEST
10With 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 Town OP;
b. maintain the general intent and purpose of the zoning by-law (ZBL);
c. are minor in nature; and
d. are desirable for the appropriate development or use of the land, building or structure.
11Further, the Tribunal must be satisfied that the variance is also consistent with the Provincial Planning Statement, 2024 (“PPS”) and have regard to matters of Provincial interest under s. 2 of the Act as well as the decision of the Approval Authority and the information that was before it.
ANALYSIS AND FINDINGS
Provincial Planning Statement and matters of provincial interest under s. 2 of the Act
12The Tribunal finds that the proposal is consistent with the policies under the PPS as well as matters of provincial interest. It is satisfied that the variances sought in the application support the notion of encouraging development in appropriate locations. As Ms. Matveeva explained, a key policy in the PPS 2024 is to encourage development on lands within the Built-Up Area of communities to provide for long term prosperity, environmental health and social well- being while making the best use of available land, infrastructure, and resources. Mr. Ramsay opined that the variances sought are consistent with the higher-level policies of the PPS 2024 and conform to matters of provincial interest under s. 2 of the Act.
13The witnesses agreed that there is no issue with variance number four. According to the witnesses, the increase in the rear yard projection from 0.5 metres to 0.7 metres to allow for a chimney breast met the requirements of the four-part test. Based on no evidence to the contrary, the Tribunal accepts that this variance meets the required test. With that said, there was disagreement with variance one through three as discussed below.
General Intent and Purpose of the OP
14The Tribunal is satisfied that the variances meet the general intent and purpose of the Town OP. The Subject Property is designated “Low Density Residential Area” in the Town OP and is situated in one of the Residential Neighbourhood areas. Section 3.4.7 of the OP and its various subsections establish policies that must be met when considering development proposals in Residential Neighbourhoods. Mr. Ramsay testified that the Subject Property is in a “stable residential neighbourhood” and Counsel for the Town argued that the OP contains strict compatibility criteria for infill and intensification in these areas including specific consideration for “adjacent housing”, which means “houses along the street”.
15The Tribunal acknowledges that Ms. Matveeva and Mr. Ramsay differed on the geographic area used to analyze neighbourhood compatibility. Ms. Matveeva took on a broader review of of houses in the neighbourhood while Mr. Ramsay had a more narrow focus. Ms. Matveeva agreed under cross examination that “adjacent housing” means houses “along the street”. Counsel for the Town argued that Ms. Matveeva’s visual evidence included properties in dissimilar contexts such as lakefront properties which were not “adjacent housing”. With that said, the Tribunal finds that an essential criteria of the “compatibility definition” referenced in the relevant sections of the OP is to ensure that the new development does not result in undue adverse impact on adjacent properties. Under s. 3.4.7 a of the OP, it is stated that:
a. New development shall be compatible with adjacent and neighbouring built form by ensuring that the siting and massing of new buildings does not result in undue adverse impacts on adjacent properties particularly in regard to privacy conditions for residential buildings and their outdoor amenity areas
16Whether it is adjacent housing or not, the focus is on undue adverse impacts. Ms. Matveeva testified that the proposal is a 2-storey dwelling situated in a way to prevent adverse privacy concerns. For example, she discussed the tree canopy and mature vegetation which would be maintained to mitigate privacy concerns, that the dwelling has been strategically placed on the irregular lot to ensure a consistent streetscape pattern with the adjacent properties, and that the features such as the front covered porch are consistent with houses in the neighbourhood. Furthermore, Ms. Matveeva testified that the provisions of an L-shaped ground floor, which was a common feature of homes in the neighbourhood, places the majority of the living areas towards the rear of the yard where massing and scale are imperceptible from the streetscape.
17Mr. Ramsay did not provide evidence regarding undue adverse impacts. His opinion focused on the fact that that the proposed reduction in front yard setback coupled with the increase in lot coverage would create a built from which would not fit in with the character of the neighbourhood. He opined that the mass and height would be out of character. While the dwelling may be appear bigger that the houses on the street, the Tribunal has not been persuaded that it is incompatible with said houses as there is no compelling evidence of adverse impacts.
General Intent and Purpose of the ZBL
Reduced Front Yard Setback and Reduced Year Yard Set back (Variance 1 and 2)
18Ms. Matveeva testified the purpose and intent of setback regulations is to ensure sufficient spacing and buffering between buildings that are beside one another in order to provide appropriate transition and scale, ensure adequate space for maintenance, and avoiding privacy and overlook concerns. Tribunal finds that each variances sought maintains the general intent and purpose of the ZB as discussed below.
19Regarding the front yard setback, the By-law requires a setback of 10.85 metres and the request is for 7.1 metres. Ms. Matveeva clearly explained the reasoning behind the inflated reduced front yard setback request. She testified that the Subject Property is next to a pedestrian walkway. If this was not the case, the calculation of the front yard setback would be an average of consistent surrounding properties. However, given the pedestrian walkway, the minimum required front yard setback is the same as the adjacent lot, 32 Viking Drive, which is 10.85 metres. The adjacent lot is a uniquely positioned lot at the curve of the street. Moreover, Ms. Matveeva testified that the Subject Property is in-line with the existing front yard setback of 28 Viking Drive which is immediately east of the pedestrian walkway and has a similar front yard set back of the previous dwelling on the property.
20Ms. Matveeva made a further contextual point. As described in the Staff Report, the front yard setback is measured from the lot line to the pinch point of the front main wall, which in this case, is the perimeter of the bay window. According to Ms. Matveeva, as defined in the ZBL, bay windows are typically permitted to encroach 0.5 metres into a setback. However, the bay window of the Subject Property is supported by a below-grade structure and therefore is not considered a permitted encroachment under the ZBL. Ms. Matveeva submitted that if the bay window was positioned differently, the front yard set-back would have been 7.6 metres – identical to the front yard setback of 28 Viking Drive.
21Under cross-examination, Mr. Ramsay agreed that the front yard set-backs of the properties along Viking Drive (those directly next to the Subject Property) and directly across it, were in the range of 7.5-7.6 metres. He further agreed that 32 Viking Drive was an outlier property on Viking Drive. Mr. Ramsay conceded, as pointed out by counsel for the Applicant, that he did not provide an analysis for the front yard set-back. He simply found that the Subject Property would be 3.75 metres closer to the street and would interrupt the visual line established by the abutting properties at 28 and 32 Viking Drive. The Tribunal prefers Ms. Matveeva’s detailed evidence as it offers contextual analysis.
22Regarding the rear yard setback, the ZBL requires a setback of 7.7 metres and the request is for 7.0 metres. Ms. Matveeva submitted that the Subject Property’s design and placement on the lot provide for sufficient separation between adjacent properties, provide for adequate amenity areas and there are measures in place to mitigate any privacy and overlook concerns. For example, visual screening is provided by privacy fencing along the shared property lines and mature trees, and there are a limited number of window openings on the facades.
23Under cross examination Mr. Ramsay agreed that some adverse impacts may be expected in an urban environment, however, he did not provide evidence that “unacceptable” or “undue” adverse impacts would result form the reduced rear side set back. He did provide testimony regarding a “oversized balcony” (46 metres) at the rear of the Subject Property, which he said is an extension of the living space and would result in people congregating and likely contribute to noise and overlook concerns. He agreed with counsel for the Applicant that no variance is required for the size of the balcony and that the Town does not regulate balcony size. The Tribunal prefers Ms. Matveeva’s evidence, especially since she discussed mitigating factors. The assertion about people congregating in the balcony and causing disruptions is speculative.
Lot Coverage (Variance 3)
24The ZBL permits 25 percent lot coverage and the Applicant is requesting the Tribunal approve 32 percent. Both experts agreed that the purpose of the lot coverage regulation is to ensure the overall scale and massing is appropriate and in keeping with the character of the surrounding neighbourhood. Ms. Matveeva testified that the Subject Property includes excavated front and rear covered porches which have been included in the lot coverage calculations. Had the porches not been excavated, they would be excluded from the calculation and the lot coverage would be less than one percent over the permitted lot coverage. The Staff Report also commented on the front and rear covered porch being included in the calculation due to the excavation and that they are left partially open to the air. Additionally, Ms. Matveeva opined that the proposed dwelling is appropriately sized and situated on the lot to respect the neighbourhood character, the livable areas are imperceptible from the street and with little impact to adjacent properties.
25Mr. Ramsay testified that most lots in the adjacent area had lesser lot coverages and that this proposal would have the highest lot coverage and highest overall floor area of the dwellings in the immediate area. He stated that the additional lot coverage contributes to an “overdevelopment” of the site. However, he did not provide adequate evidence to support this assertion. Further, he did not address the fact that the properties on the North Side of Viking (directly across the Subject Property) have an as of right permitted lot coverage of 35 percent, as noted by Ms. Matveeva. In the end, the Tribunal prefers the evidence of Ms. Matveeva.
Desirable for the Appropriate Development use of the Lands
26Ms. Matveeva testified that the requested variances are desirable for the appropriate use of the lands, as it represents reinvestment in the lands in close proximity to services and amenities, is appropriate for the Town, neighbourhood and property. She stated that the requested variances will maintain the appropriate built form, height, mass and built-form features. She noted that the Applicant had given thought to the built form features so as to ensure the dwelling is complimentary and respects the character for the neighbourhood while providing compatible development.
27Mr. Ramsay opined that the variances are not appropriate for the development of the site. The variances do not fit the character of the neighbourhood, the reduced front yard setback will disrupt the established streetscape, the reduced rear yard setback will allow incompatible development with unacceptable adverse privacy and overlook issues, and the increase in lot coverage will represent an overdevelopment of the site. As discussed earlier, Mr. Ramsay did not provide adequate evidence for the privacy and overlook assertions and the Tribunal preferred the evidence of Ms. Matveeva regarding the front yard and rear yard setbacks as it was more contextual in nature. As such, the Tribunal finds that the variances are desirable for the appropriate development of the Subject Property.
Variances are Minor
28The Tribunal is satisfied that the variances sought are minor in nature and will not cause undue adverse impact on the adjacent properties nor on the neighbourhood in general. There is no evidence before the Tribunal to demonstrate any adverse impacts with respect to privacy and overlook concerns. Mr. Ramsay stated that the larger dwelling size permitted by an increase lot coverage will extend beyond the front and rear walls of the adjacent properties (28 and 32 Viking Drive) causing these properties to “feel boxed in” by the larger dwelling. However, Ms. Matveeva explained that there are significant side yard set backs, 3.9 metres, to the east lot (double what is required) and 7.5 metres side yard setback to 28 Viking Drive on the west side of the pedestrian walkway discussed earlier. Given this contextual element, the Tribunal finds there will be sufficient spacing between the adjacent properties which helps mitigate the feeling of being “boxed in”.
29Finally, both witnesses agreed the increase in the rear yard projection from 0.5 metres to 0.
PROPOSED CONDITIONS TO THE MINOR VARIANCE APPLICATION
30The Town proposed the following conditions should the Tribunal approve the minor variance requests:
The Applicant produce an as-built survey following final construction to establish that all measurements for yard setbacks, lot coverage, encroachments, height, and final established grade are consistent and compliant with what is permitted for the site;
Lot Grading and Drainage Plan demonstrating the existing drainage patterns for the lot and 5 m beyond property line and that storm water runoff will not negatively impact nor rely upon neighboring properties. Applicant to ensure all roof down spouts, proposed swales, etc. are shown on the plan; and
Should the Applicant propose any changes to the servicing, a Site Servicing Plan is required.
31Ms. Matveeva had reviewed all proposed conditions and found them to be appropriate. She opined that there were no concerns with implementing the conditions if they were required.
FINDINGS
32The Tribunal is satisfied by the evidence before it, 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 its applicable policies. The Tribunal finds that the totality of evidence al supports the authorization of the minor variances.
ORDER
33THE TRIBUNAL ORDERS that the Appeal is allowed and the variances to Zoning By-law No.14-15 are authorized, subject to all of conditions listed below:
The Applicant produce an as-built survey following final construction to establish that all measurements for yard setbacks, lot coverage, encroachments, height, and final established grade are consistent and compliant with what is permitted for the site;
Lot Grading and Drainage Plan demonstrating the existing drainage patterns for the lot and 5m beyond property line and that storm water runoff will not negatively impact nor rely upon neighboring properties. Applicant to ensure all roof down spouts, proposed swales, etc. are shown on the plan; and
Should the Applicant propose any changes to the servicing, a Site Servicing Plan is required.
“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.