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Minor Variances

  1. Chiu v. City of Toronto (Committee of Adjustment)

    Location:

    City of Toronto


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    The Applicants wish to construct a new two-storey dwelling on the subject property. They applied for and received authorization from the Committee of Adjustment. The Committee’s decision was appealed by Carolyn Koziskie and Lucinda Chiu, who are abutting owners to the north and east respectively. The Applicants and the Appellant, Carolyn Koziskie settled their differences and the application was being amended to reflect the agreement reached between them.


    Held:

    Appeal allowed in part.


    Reasons:

    The Board is satisfied that the variances, individually and cumulatively, meet the four tests. The intent of the Official Plan is met, and the proposed variances will result in a dwelling that respects and reinforces the physical character of the neighbourhood. The intent of the zoning by-law is maintained, and the authorization of these variances will have less of an impact than potential “as of right” development concepts. The variances are minor both by order of magnitude and will not cause any adverse impact on anyone. The Appellants are concerned about impact on their existing view, and it is well settled law that there is no right to the protection of a view in Ontario. Authorization of these variances will allow the construction of a dwelling meeting modern needs of creative design that will maintain the high quality of the neighbourhood.


    Document(s):



  2. Boswell v. Seguin (Township)

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    This variance hearing was uncontested. On Lake Joseph, there are many substantial boathouses with upper living quarters. Some are larger than what is permitted by today’s zoning – which was sometimes adopted years after these structures were built. Boswell (Applicant) owned on of those non-complying structures in the Township of Seguin. The Applicant proposed a boatlift apparatus, intended for the boat moored under her awning. Although these devices spend much of their time underwater, By-law 2006-25 treats any “in-water shoreline structure or facility” in much the same way as a building. The Applicant applied for three variances: to reduce the sideyard setback; to allow a corresponding increase in width of the boathouse; and to allow an adjustment in the allowable shoreline frontage. The Committee of Adjustment received letters of opposition and the Committee turned down the variances. The Applicant then appealed to the Board.


    Held:

    Appeal allowed


    Reasons:

    Although there are many instances where concerns would be justified, the Board was not convinced that they apply to the fact situation here. In terms of visual impact, and respect for the water and the shoreline: at present, the view is of a boat at water level, under a cantilevered awning; under this proposal, the only change to that vista would be that the boat would be propped, instead of being at water level. The Board was not persuaded that, in this specific case, the incremental act of propping the boat under the awning would represent a significant visual digression – as viewed from the lake. The Board concludes that the evidence makes the proposed variances minor, for the purposes of the Planning Act.


    Document(s):



  3. Nizar Fakirani Professional Corp. v. City of Toronto

    Location:

    City of Toronto


    Subject:

    Minor Variances


    Court:

    Ontario Municipal Board


    Application/issue:

    The Applicant seeks to permit an existing private school to continue to provide full time English as a second language and high school courses on the main floor of the building. A variance is required from Employment Districts Zoning By-law No. 24982 to permit a 140 square metre private secondary school. The Committee of Adjustment refused to authorize the variance and the Applicant has appealed the decision.


    Held:

    Appeal allowed


    Reasons:

    The board finds that the variance is desirable for the appropriate use of the land and building, the general intent and purpose of the By-law and of the Official Plan are maintained and it is minor in impact. The Board further states that there were not neighbours who attended the hearing raising issues with the school; it provides employment in an area designated as an Employment Area; and there was no evidence suggesting any adverse impact.


    Document(s):



  4. Craig Mills v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Appeal to the Board for minor variance to permit height of 26.5 ft. of an accessory structure (garage) whereas the maximum permitted height is 20.0 ft. pursuant to s. 45(12) of the Planning Act.


    Held:

    Appeal allowed


    Reasons:

    A mediation process was held in which both parties agreed that the Applicant would not use the garage as a sleeping cabin or for habitable space. In addition, there were no other negative impacts from the variance and the Township’s Director of Planning concluded that the variance was minor. Therefore, the Board allowed the variance.


    Document(s):



  5. Metropolitan Toronto Condominium Corporation No. 938 v. Wei

    Location:

    City of Toronto


    Subject:

    Condominium Development, Industrial Development, Minor Variances


    Court:

    Ontario Municipal Board


    Application/issue:

    Jane Wei operates the Middlefield Kumon Centre for mathematics and reading in the second floor of an industrial condominium in the City of Toronto. Some years ago, the City advised the applicant to obtain a variance for that use, which she did in 2006 and 2008. She had to reapply again in 2013 as the variance was only valid for two years and upon reapplication, the Metropolitan Toronto Condominium Corporation No. 938 appealed the Committee’s variance decision to the Board, alleging that the centre represented problems for the building management. Two other corporations with factories nearby, appeared to oppose the variance as well: Owens Corning Insulating Systems Canada LP and Trench Canada.


    Held:

    Appeal dismissed


    Reasons:

    For the purposes of this appeal, the Board finds no evidence on which to suppose any digression from the four statutory tests at this time. The variance to the applicable Zoning By-law of the City of Toronto is authorized in accordance with the decision of the Committee of Adjustment. The Board found that, if the Motion were granted, the established situation would be compromised primarily on the basis of an apprehension – unproven – that a non-party might have difficulties with MOE at some indeterminate point in the future.


    Document(s):



  6. Durfy v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances, Residential Development, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Appeal an application for a minor variance to increase permitted lot coverage from 10% to 14.1% of the lot and 14.3% of the lot within 200 feet of the high water mark. The subject property is designated “Waterfront” and zoned WR1 in Zoning By-law No. 87-87.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the modest addition to the cottage is far enough removed from the waterfront and buffered by trees to have minimal impact on the views from the lake. The addition meets the general intent of the zoning by-law because it is hidden from view, does not interfere with development of abutting property and is not any more of a precedent than that of the abutting lands.


    Document(s):



  7. Mehlenbacher v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Appeal for two minor variances to expand an existing two storey boathouse by adding a 198 square foot covered deck to the second storey. The variance would allow relief for the cumulative width of 15% whereas the by-law permits 13%.


    Held:

    Appeal dismissed


    Reasons:

    The Board finds that the addition to the boathouse will have an impact on the views from the lake and the covered deck would fundamentally change the view from the water. The OP sets limits for the development of waterfront structures based upon the size of the lake, the coverage of structures, and the frontage of the lot. The evidence clearly demonstrated that a significant area of natural shoreline would be blocked by the new roof and would increase the dominance of the man-made environment as opposed to the natural environment. Therefore, the Board finds the scale of the variance to be excessive because it transfers the rights of larger lots (over 400 feet) to a much smaller lot.


    Document(s):



  8. Robinson v. Township of Muskoka Lakes

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances


    Court:

    Ontario Municipal Board


    Application/issue:

    The appellants are appealing a decision from the Township of Muskoka for the refusal of a minor variance from Zoning By-law 87-87, which would permit a proposed garage/storage building on the subject property. The variances are relief from s. 7.3.1 of ZBL 87-87; a lot are of 0.4 acres rather than the required 1.0 acres; a lot frontage of 110 ft, rather than required 200 ft; and a maximum height of 20.5 ft, rather than maximum height of 20 ft.


    Held:

    Appeal allowed with conditions


    Reasons:

    The Board finds that there are no matters of Provincial interest affected by this application and that the applications are in conformity with the intent and purpose of the District of Muskoka OP and the Township of Muskoka Lakes OP as amended by OPA No. 40. It is also the determination of the Board that the relief being sought out is minor and will have no adverse impact on any abutting properties, nor will the plans not comply with the standards of the municipality or the Ontario Building Code.


    Document(s):



  9. Savelli v. Elliot

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances


    Court:

    Ontario Municipal Board


    Application/issue:

    Appeal to Board for minor variance of construction of two-storey garage, seeking relief in s. 3.1.2.a of By-law 87-87, as amended, being the maximum coverage of buildings on a lot and a variance of the maximum coverage permitted on building from the high water mark of 359 square feet.


    Held:

    Appeal allowed with conditions


    Reasons:

    The land-use planner found that the two-car garage will meet all other zoning by-law requirements except for lot coverage. In addition, the variance is considered minor because the OP regards anything less than 1/10 over the permitted lot coverage as minor. For these reasons, the Board is satisfied that the proposed variances meet the tests in subsection 45(1) of the Planning Act, are in the public interest and represent good planning.


    Document(s):



  10. Trans Canada Pipelines Ltd. V. Israel

    Location:

    Greater Golden Horseshoe


    Subject:

    Minor Variances


    Court:

    Ontario Municipal Board


    Application/issue:

    Pursuant to s. 45(12) of the Planning Act, Trans Canada Pipelines Ltd. has appealed a decision of the Town of Oakville, which authorized a variance from the provisions of the Town’s zoning by-law to permit the development of a pool by the applicants with a reduced rear yard setback.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the variance, as amended, meets the four tests set out in s. 45(1) of the Planning Act. There has been regard to matters of provincial interest, as required under S. 2 of the Act, the decision is consistent with applicable policy statements and conforms with provincial plans, as required under ss. 3(5)(a) and (b) of the Act.


    Document(s):



  11. Smejkal v. City of Guelph

    Location:

    Greater Golden Horseshoe


    Subject:

    Minor Variances, Residential Development, Severances


    Court:

    Ontario Municipal Board


    Application/issue:

    This was a telephone conference settlement hearing with respect to appeals by Robert and Leslie Smejkal of the decisions by the City of Guelph Committee of Adjustment to grant provisional consent, subject to conditions, and to authorize minor variances for the subject property. In 2009, the Applicants filed applications for consent to sever and permit minor variances for both Lots, in order to permit the construction of a single detached residential dwelling on part of the first Lot, and to recognize a legal off-street parking space for the existing single detached dwelling on the second Lot.


    Held:

    Appeals allowed in part


    Reasons:

    The Board finds that the proposed lot line adjustment (severance) implements the goals and objectives of the Growth Plan, the Provincial Policy Statement, and the City of Guelph Official Plan, and represents good planning. The proposed variances conform to the overall goals of the Official Plan and maintain the intent and purpose of the Zoning By-law. The variances are desirable for the appropriate development of the property, will not result in the creation of adverse impacts, and are minor in nature. The Board further finds that these planning applications, subject to the conditions of the proposed Settlement, satisfy the criteria set out in subsections 51(24) and 45(1) of the Planning Act.


    Document(s):



  12. Demczur v. Town of Orangeville

    Location:

    Greater Golden Horseshoe


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Appeal the granting of a minor variance by the Committee of Adjustment of the Town of Orangeville from the provisions of Zoning By-law 22-90.This By-law requires a minimum yard setback of 1.5 metres and an encroachment of up to 0.7 metres into the side yard for stairs and other structures provided a setback of a minimum of 0.6 metres is maintained.


    Held:

    Appeal allowed (variance not authorized)


    Reasons:

    The Board finds that the construction on the subject property does not adhere to the rules and measurements of the Zoning By-law and is therefore contrary to both the provisions and the general intent and purpose of the By-law. Further, it fails three of the four tests required in s. 45(1) of the Planning Act and therefore is not desirable for the appropriate development, as it has an adverse impact on the Demczur property and is not minor.


    Document(s):



  13. Reid Uptown Homes v. City of Guelph

    Location:

    Greater Golden Horseshoe


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    Reid’s Uptown Homes has appealed the decision of the City of Guelph Committee of Adjustment refusing its application for a total of nine minor variances from the provisions of the City of Guelph Zoning By-law 14864 to permit construction of its proposed 118 residential units. The proposal was supported by the City of Guelph but opposed by an unincorporated group comprising some 40 local residents calling themselves the “By-the-Law Coalition.” Three individuals represented the Coalition at the hearing.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the variances satisfy the four tests under subsection 45(1) of the Planning Act. They conform to the general intent and purpose of the Official Plan, which in this case is Official Plan Amendment 39 to make more efficient use of land as required by the Growth Plan. As well, the proposed density conforms to the policies for Greenfield Areas. They also conform to the general intent of the By-law, which permits stacked townhouses. Finally, because there is no foreseeable adverse impact on the surrounding properties and because the variances are themselves numerically slight and, from a land use planning point of view, inconsequential, the test of minor is met.


    Document(s):



  14. Coverdale v. Town of Bracebridge

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal under subsection 45(1) of the Planning Act against the decision of the Town of Bracebridge, which authorized a minor variance to permit a front yard setback of 24.6 m from Wood Lake, whereas the By-law requires a minimum of 30 m. The applicants had requested the Committee to authorize a setback of 19.6 m to accommodate the construction of a new two-storey cottage and deck.


    Held:

    Appeal allowed in part


    Reasons:

    The Board finds that there is room for flexibility to permit the new cottage and there is sufficient space to accommodate additional vegetation on the property up to the 30 m line from the lake. Therefore, the proposed cottage would maintain the general intent and purpose of the Official Plan and Zoning By-law, despite the 20 m setback provisions. However, the Board requires the following conditions: the footprint of the cottage and deck shall not exceed 15.7 m by 12.1 m or 190 m2 of ground coverage; the recommendations of the Environmental Consultant are to be incorporated into the Site Plan Agreement between the Town and the applicants/appellants.


    Document(s):



  15. Brown & Orrett v. Town of Bracebridge & Benson

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal of a variance to Zoning By-law 2006-120 in order to construct a boathouse. Authorization of the variance would increase the permitted percentage of the shoreline to be developed from 25% to 36.52%, resulting in a boathouse of 48.69 feet in width as compared to a permitted 30.08 feet.


    Held:

    Appeal dismissed


    Reasons:

    The Board finds that the Committee of Adjustment gave the application a thorough review, stating that the application is minor and is appropriate as the boathouse will meet all other requirements of the Zoning By-law. The Board rejects the appellant’s submissions that the application would affect his property value. The Board agrees with the applicants that the general purpose and intent of the ZBL is maintained through the limitation on waterfront structures in that the proposed structure is less extensive than the existing docks and is located some 61 feet from the appellant’s property.


    Document(s):



  16. Graham v. Town of Gravenhurst

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal of a decision by the Town of Gravenhurst Committee of Adjustment authorizing minor variances for a property on which the applicants wish to construct a new dwelling. The applicants required relief from the minimum side yard and minimum rear yard requirements of By-law 95-54, as amended.


    Held:

    Appeal allowed in part


    Reasons:

    The Board was advised that the Parties had successfully negotiated a settlement of their differences. The Board finds that the requested relief from By-law No. 95-54, as amended, satisfies the statutory requirements of Section 45(1) of the Planning Act.


    Document(s):



  17. The Corporation of the Town of Markham v. Gordon

    Location:

    Greater Golden Horseshoe


    Subject:

    Leave to Appeal, Minor Variances, Residential Development


    Court:

    Ontario Superior Court of Justice


    Application/issue:

    Town of Markham seeks leave to appeal to the decision of the Ontario Municipal Board to the Divisional Court. Ms. Gordon was successful in her appeal before the Board to demolish an existing building and garage and construct a new gothic revival brick two-storey dwelling with an attached two-car garage. The Town argues that there is reason to doubt the correctness of the Board’s position on the question of the law.


    Held:

    Leave to appeal denied


    Reasons:

    The Court is not satisfied that it is of sufficient importance to merit the attention of the Court. Further, the Court cannot conclude that there is reason to doubt the correctness of the Board’s decision, even if it were determined that a question of law was involved. The applicant has failed to satisfy the Court that there is reason to doubt the correctness of the decision for which leave is sought.


    Document(s):



  18. Leonard v. Town of Bracebridge

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Minor Variances, Recreational Development


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal against the Town of Bracebridge Committee of Adjustment’s decision to refuse an application for a minor variance, to permit a hunt camp on a 39.97 hectare parcel of land. By-law 2006-120 requires a hunt camp in a rural area to have a minimum lot area of 40 hectares.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the variance meets all four of the statutory tests of subsection 45(1) of the Planning Act and it is the Board’s view that this proposal will be compatible with the immediate area and will not adversely impact the neighbourhood and surrounding properties.


    Document(s):



  19. Hanmer v. Town of Gravenhurst

    Location:

    Muskoka/Parry Sound/Haliburton


    Subject:

    Boathouses, Minor Variances, Shoreline Development


    Court:

    Ontario Municipal Board


    Application/issue:

    An appeal from the decision of the Committee of Adjustment for the Town of Gravenhurst, which refused his application for relief from the provisions of the Zoning By-law 94-95, for an increase in the height of his one-storey boathouse. The permitted height is 3.9 metres and the Appellant requests an increase of 0.7 metres, to 4.6 metres. The Town’s position is that it would have negative aesthetic impact on the shoreline when viewed from the water.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the Appellant has discharged its burden to meet all four tests under Section 45 of the Planning Act for the application to be approved. The height variance is minor both in size and impact and the applicant has demonstrated that he intends that structure to be used solely for storage and not habitation. Further, there would be no adverse effect on the aesthetic quality and natural environment of the waterfront.


    Document(s):



  20. Town of Markham v. Gordon

    Location:

    Greater Golden Horseshoe


    Subject:

    Minor Variances, Residential Development


    Court:

    Ontario Municipal Board


    Application/issue:

    The Appellant proposes to demolish the existing dwelling and detached garage to construct a new two-storey dwelling with an attached two-car garage. The appellant submitted a Demolition Permit application, a Minor Variance application for three variances and a Site Plan Control application, however was denied by the Committee of Adjustment of the Town of Markham. These decisions were appealed and consolidated for this hearing.


    Held:

    Appeal allowed


    Reasons:

    The Board finds that the demolition conforms to the Provincial Policy Statement (2005) and the Growth Plan for the Greater Golden Horseshoe, as well as the York Regional Official Plan and the Town of Markham Official Plan and the Thornhill Secondary Plan. Further, the variances maintain the intent and purpose of the Official Plan and the Zoning By-law by allowing the construction of a two-storey dwelling in an R2 Zone. As such, the variances also meet the four statutory tests under Section 45(1) of the Planning Act.


    Document(s):