Ap­peal tri­bunal clears path for new res­i­dence

The Daily Press (Timmins) - - FRONT PAGE - LeN GIL­LIs

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.

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