Appeal tribunal clears path for new residence
A Timmins family has won the right to build their new home in Porcupine even though it is slightly larger than the lot coverage allowed in the city’s zoning bylaw, The Daily Press learned on Friday.
The issue was argued last month by property owner Anna Feldman and her husband Lorne at a special Local Planning Appeal Tribunal (LPAT) hearing held at city hall.
The unusual planning battle, which involved intervention from city council, has overturned a decision by the city hall Planning Department and the Timmins Committee of Adjustment (CoA).
Anna Feldman had applied to city hall earlier this year with plans for a new home on Lot 11 on Sony Street. The house plan indicated the lot coverage would be 41%, instead of 35% as allowed in the zoning bylaw.
To their surprise the application was turned down this past summer when the city planning department refused to support the application.
Lorne Feldman told the LPAT hearing that in his opinion the planning department had “hijacked” his application.
Despite the planning department’s refusal, the Feldmans pressed on and paid $575 to have their case appealed to the committee of adjustment. It’s a common situation and as per procedure, the Feldmans applied for what is called a minor variance that would allow them to move forward.
Their application was denied by the CoA.
City Planning and the committee ruled that the Feldman application had failed the four tests outlined in the Planning Act to allow a minor variance.
The four tests are:
• Is the application minor in nature?
• Is it appropriate and desirable development for the area?
• Is it in keeping with the purpose and intent of the Zoning By-law?
• Is it in keeping with the purpose and intent of the Official Plan? The decision came as a surprise to Timmins city council. It turned out not all members of the committee were present at the time the decision was made. Three of the eight members of the CoA were absent and only five voted on the Feldman file. Three were against. Two were in favour.
The issue was discussed at city council, where several councillors expressed dismay that such a normal variance was being refused.
Council does not have the power to overturn a CoA decision. But council took another course of action. Council decided that no one from city planning or the CoA would be allowed to argue the case against the Feldmans who by then had decided to appeal to the LPAT, which was formally known as the Ontario Municipal Board.
as the case was presented at the lPat hearing on Sept. 25, only the Feldmans were there to argue their case. there was no one from city Planning or the coa.
hearing officer c.J. bryson noted that only the Feldmans were in attendance to present their case.
“No neighbourhood residents or members of the public appeared in opposition to the application,” bryson also stated in her written decision.
in fact, bryson stated, the nearest neighbour wrote a letter of support for the Feldmans. evidence also indicated that the Feldmans were willing to purchase a lot abutting their property. this would allow them to meet the lot coverage issue. but the owner of the land, a Southern Ontario developer indicated he had no intention to service any more property in the Sony Street subdivision. the lots abutting the Feldman property have been vacant and unserviced for the past 12 years, the hearing was told.
“the tribunal accepts there are therefore no foreseeable adverse impacts of the proposal development upon those vacant lots,” bryson wrote.
even though the onus was on the Feldmans to demonstrate that their application met the four tests required by planning, bryson noted that no one from planning or the coa was available to present opposing evidence.
“in this case, the appellant and her husband provided substantial uncontested planning evidence and submissions to the tribunal in support of their case. On that basis, the tribunal finds in the appellant’s favour and approves the variances subject of her application.”
This is the area on Sony Street where Anna Feldman can build her new family home. Feldman has won a favourable decision from the Local Planning Appeal Tribunal (LPAT) which has overturned previous refusals from City Planning and the Timmins Committee of Adjustment. The refusal from planning said Feldman’s house was too big for the lot and the CoA refused to grant a minor variance. Feldman successfully appealed on the grounds that the house easily fits in with the neighbourhood and the variance is in keeping with several other variances granted this year.