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HomeMy WebLinkAboutPSD-029-04 " Cl!J!mglOn REPORT PLANNING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, March 8, 2004 'D13 $tGP~- IOq-OU. Report #: PSD-029-004 File #: A2003/022 By-law #: Subject: ONTARIO MUNICIPAL BOARD DECISION COMMITTEE OF ADJUSTMENT APPLICATION A2003/022 ANITA WRAY AND VAHID SOBHANI RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PSD-029-004 be received; and 2. THAT Anita Wray and Vahid Sobhani be given to June 1, 2004 to remove the portions of the deck not in compliance with the Ontario Municipal Board decision; and 3. THAT a copy of the report be forwarded to the applicants. Submitted by: D vid Crome, MCIP, R.P.P. Director of Planning Services Reviewed by: u~~.~ ~'-'l Franklin Wu, Chief Administrative Officer SNL TIDJClld February 25, 2004 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1 C 3A6 T (905)623- 3379 F (905)623-0830 , oij ., REPORT NO.: PSD-029-04 PAGE 2 1.0 BACKGROUND 1.1 The subject property, owned by Anita Wray and Vahid Sobhani, is located at 70 Carveth Crescent in the Port of Newcastle subdivision. The property abuts the Waterfront Trail. The application was submitted to recognize a deck that was partially constructed. The homeowners and their contractor had begun construction without a building permit. Staff did not support the application; however, the Committee of Adjustment did attempt to find a compromise and permitted a partial approval. 1.2. The homeowners were dissatisfied with Committee's decision and appealed the application to the Ontario Municipal Board. The Ontario Municipal Board hearing was held on February 11, 2004, Mr. Nick Macos was legal counsel for the Municipality and Ms. Susan Ashton was the planner giving evidence. 1.3 The Board Member provided a verbal decision at the hearing, followed by a written decision and order on the appeals filed by the applicants. The Board accepted the position of Municipal Planning Staff, allowing for no reduction in rear yard setback. The Board did permit the applicant to reduce the side yard setback to 0.6 metres, thus resulting in a slight increase in lot coverage and small reduction in landscaped open space. 1.4 The following table summarizes the zoning by-law requirements, the application as received, Staffs recommendation to Committee of Adjustment, and the Ontario Municipal Board's decision. Setbacks Lot Landscaped Rear Yard Side Yard Coverage Open Space Zoning Requirement 2.6 m 1.2 m 30% 60% Application A2003/022 Om Om 22% 69% Staff Recommendations 2.6 m 1.2 m 30% 60% Committee Decision 2.6 m Om 26.5% 64% OMB Decision 2.6 m 0.6 m 28% 61% 1.5 The homeowners are now required to remove a portion of the partially constructed deck immediately, to bring it into compliance with the OMB decision. The OMB did not grant a time period for the deck to remain. It is Staffs opinion that it would be appropriate to allow the homeowners until June 1, 2004 to remove the offending portions of the deck. 2.0 STAFF COMMENTS 2.1 When the Port of Newcastle Plan of Subdivision received approval, a new exception zone category (R2-10) was approved by Council reducing the required rear yard setbacks for dwellings from 7.5 metres to 5 metres, the required rear yard setbacks for decks from 6 metres to 2.6 metres while increasing the permissible lot coverage from 40% to 60%. , ' o C.J REPORT NO.: PSD-029-04 PAGE 3 2.2 This is the second Ontario Municipal Board hearing where the Municipality has successfully argued that a reduction in the rear yard setback does not meet the intent of the zoning by-law, nor is a minor or desirable on the wide, shallow lots in the Port of Newcastle subdivision. 3.0 CONCLUSIONS 3.1 It is respectfully recommended that Staff Report PSD-029-04 be received and that the recommendation be approved giving Anita Wray and Vahid Sobhani to June 1, 2004 to remove the portions of the deck not in compliance with the Ontario Municipal Board decision dated February 17, 2004. Attachment: Attachment 1 - Ontario Municipal Board Decision List of interested parties to be advised of Council's decision: Anita Wray & Vahid Sobhani 70 Carveth Crescent Newcastle, Ontario L 1 B 1 N4 Oi.. ; 0349 ~ Ontario : Ontario Municipal Board l Commission des affaires municipales de I'OntarT6' "~, ATTACHMENJ 1 ISSUE DATE: Feb. 17,2004 DECISION/ORDER NO: PL030974 Anita Wray and Vahid Sobhani have appealed to the Ontario Municipal Board under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended, from a decision of the Committee of Adjustment of the Municipality of Clarington which granted an application numbered A2003/022 for variance from the provisions of By-law 84-63, as amended, respecting 70 Carveth Crescent OMB File No. V030455 APPEARANCES: Parties Counsel Municipality of Clarington N. Macos Anita Wray and Vahid Sobhani MEMORANDUM OF ORAL DECISION DELIVERED BY J. R. MILLS ON FEBRUARY 11, 2004 AND ORDER OF THE BOARD There is an old adage that says "You should quit while you are ahead" and that is certainly the case here. The applicants installed a swimming pool in their backyard, which is approximately 2% ft. in and 2% ft. out of the ground. They wish to have decking surrounding the pool but have run afoul of the Municipality's Zoning By-law. The applicants applied to the Committee of Adjustment for the following variances: . a sideyard setback of 0 metres instead of the required 1.2 metre setback; . a rearyard setback of 0 metres instead of the required 2.6 metres; . a reduction in landscaped open space to 22% instead of the required 30%; and, . an increase in total lot coverage to 69% instead of 60%. ULU -2- PL030974 The Committee of Adjustment approved a smaller deck and granted the following variances: . a side yard setback of 0 metres instead of the required 1.2 metre setback; . a total minimum lot coverage of 64% instead of the required maximum 60%; and, . a reduction in landscaped open space of 26.5% instead of the required 30%. The applicants have appealed the Committee of Adjustment decision to this Board and the Municipality now takes the position (by Council Resolution) that no variances should be granted. There is a staff report, which suggests sideyards of 0.6 metres but no rearyard variance. The applicants believe it is a safety issue as that any child who might need assistance while in the pool may be reached as quickly as possible. The pool is 8 feet wide by 28 feet long and varies in depth from 3% feet to 5 feet. The root of the applicants' concerns really is that they thought they had bought a deeper lot and had no idea that a Waterfront Trail would be built abutting their rearyard. They also have built most of the deck already using a contractor who did not get a building permit. The planner for the Municipality, Susan Ashton, advised the Board that the subject property and those also abutting the Waterfront Trail were zoned R2-10 Exception with greatly reduced sideyard and rearyard setbacks visa vis the normal Residential Zone setbacks in the Municipality's Zoning By-law. She was concerned that o sideyard setbacks would not allow for privacy for the neighbours, for future deck maintenance or, for erosion repairs to the lot. She believes that the rearyard setback (only 2.6 m vs the normal 7.5 m) is necessary to provide privacy to both the landowners and the trail users. Finally, it was her evidence that the subject application as well as the Committee of Adjustment decision, failed the four tests of Section 45(1) of the Planning Act. The Board agrees with Ms Ashton that the rearyard variance should not be granted. All the other properties abutting the Waterfront Trail in this R2-10 Exception Ci!. ; . . " - 3- PL030974 subdivision conform to the rearyard setback. The Board also agrees with her that the sideyard variances granted by the Committee of Adjustment should not be granted. The Board does agree, however, with the staff report that a sideyard variance (both sides) of 0.6 m (1.2 m required) does satisfy the four tests of Section 45(1) of the Planning Act. The Board therefore allows the appeal in part and authorizes the following variances: 1. a sideyard setback (both sides) of 0.6 m (1.2 m required); 2. a total lot coverage of 61 % (60% allowed); and 3. a reduction in landscaped open space to 28% (30% required). The Board so Orders. "J. R. Mills" J. R. MILLS MEMBER \'