Airdrie: ‘Forgive us’ case turned down

We won! Actually, Leaside won. The OMB member in his decision dated Jan. 26 about 151 Airdrie decided “that the appeal is dismissed and the variances are not authorized”.

This is a satisfactory conclusion for us to the hearing held on Dec. 9, described in my January column: 151 Airdrie: Another gee, please forgive us case.

At that time the OMB member reserved his decision.

He basically did not buy the arguments of the appellant’s planner and instead noted that “three participants testified convincingly against the application… no doubt assisted by their intimate knowledge and commitment to the Leaside community, and their knowledge of planning policy and zoning standards which they demonstrated throughout the hearing”.

The member’s own words in his well- crafted and sometimes under-stated decision tell it best:

“A compelling case was not made by the (applicant’s) planner why the subject property should have the status of the tallest home in the neighbourhood….

“The board is also mindful that the approval of variances must rely on Official Plan policy as one of four tests….’No change’ will be made by variance or other means ‘which are out of keeping with the physical character of the neighbourhood’.

“In the board’s opinion, approval of a variance which permits the tallest house in the neighbourhood is not compliant with that policy.

“A policy which begins with the word ‘No’ cannot be ignored in association with an application which would establish a new benchmark for residential building height. When measured against this policy, the case for compatibility cannot be made.

“The argument that the subject lands have a transitional role, situated as they are beside a walk-up apartment building is not a persuasive one. The applicant’s property is zoned for single family use, and the adjacent apartment site is zoned for multi-density purposes….

“The longevity of this (8.5 metre height limit) standard suggests to this tribunal that consistency in height control has considerable importance as a land use control which should not be easily varied. The appellant has already received one variance for height, a second approval… would fail the test that the general intent and purpose of the Zoning By-law is being maintained.”

So what does this decision mean for Leaside?

First, I think it confirms that “no means no,” that there are limits, which in the planning field, with its seemingly infinitely flexible rules and massive pressure for compromise, is comforting.

Second, it confirms that the board is only interested in how the variances (actual or proposed) relate to the planning tests. The fact that it is already constructed is not of interest to the board. The board assumes that the matter of building permissions and the policing of this (i.e. building in conformity with the law) is the responsibility of the municipality.

And in our situation with an under-resourced building department, in part this puts it back to us as neighbours and residents to monitor to ensure that the city is managing the building permits, and is on top of the inspections that are required in a reconstruction.

In this case it was Vanessa Rose and Larry Bacon who noticed that the house appeared to be over-built and called the department to inspect.

Third, the board took into account the testimony about Leaside character and compliance with the Leaside Residential Character Preservation Guidelines (2003) confirming again their relevance in the test for conformity with Official Plan policies.

Fourth, it shows that the community can win even when city planning has not commented on the application. However, that is a crying shame. Neighbourhoods seem to be at the bottom of city planning’s priority list, and their lack of attention to neighbourhood character needs to change.

Amendments to the Planning Act passed by the Ontario Legislature in December 2015 may help in that regard. More on that in a later column.

So what happens now? The owner has a major problem. He can appeal the OMB decision to divisional court or comply somehow. (The city is bound by the OMB decision).

About Geoff Kettel 90 Articles
Geoff Kettel is a community connector and advocate for “making places better”. He is currently Co-President of the Leaside Property Owners’ Association, Co-Chair of the Federation of North Toronto Residents‘ Associations (FoNTRA), and Chair of the North York Community Preservation Panel. He writes a monthly column on heritage and planning in Leaside Life.