OMB doesn’t care if developer ignores orders

73 Donegall
73 Donegall: is that really a driveway?

One thing is clear from two recent Leaside cases before the Ontario Municipal Board, only one of which we won.

The OMB is concerned only with planning metrics, with raw impact. It does not care if the developer broke the rules or ignored city orders.

The case that LPOA won was the second time, for 73 Donegall, at the OMB. It was notable to us partly because the owner ignored directives from the city.

After the owner’s original request for variances was refused on Jan. 22 last year he applied for and received from the city a building permit for renovation of the existing bungalow which required that the two side walls remained in place, and that it would be renovated in such a way that zoning provisions would be adhered to.

During construction the walls were removed and extended on one side. The Building department was called and a stop work order was issued. The city now considered the dwelling to be new construction.

At the OMB hearing a letter was placed into evidence that the sides had to be demolished for safety reasons.

In his decision the OMB chair stated that “the Board is unconcerned with the reason for the demolition and the Board does not take into account whether a property has already been constructed without permits. Rather the Board assessed the application on its planning merits.”

In June 2015, the Committee of Adjustment once more refused the applicant’s variances, which led to the appeal to the OMB.

At the second hearing this past Oct. 5 the variance for minimum required side yard setback and minimum required width of a driveway were again key issues, although an integrated garage had been removed and was no longer an issue.

However the design included a three-metre extension of an addition at the rear of the house that followed the new setback, though for a shorter distance than the previous application.

The new decision says, “What the Board wrote in last year’s hearing for the previous length variances is equally applicable today for the reduced side yard variances in broad planning terms: the design contributes to an already undesirable condition by creating additional built form… that impacts an adjacent resident and which also fails to acknowledge or respond to the overall narrowness of the lot and the general compactness of side by side development between 71, 73 and 75 Donegall Drive.”

It seems to me that the case turned on the need to ensure that a mutual driveway continued to function as a viable access by both parties in the way it always had. This is a pretty basic issue but important nevertheless.

The wider issues of “fit” and “character” were not the key consideration in 79 Donegall’s second OMB hearing.

At 309 Bessborough the case concerned the developer’s appeal of the decision of the Committee of Adjustment to reject the minor variance application to permit the construction of a new two-storey detached dwelling and demolition of the existing house.

The case was heard on August 25 and reported in the October edition of Leaside Life. The decision, to allow the appeal and the minor variances, was released Sept. 25. In this case, involving the same chair as in 73 Donegall, the OMB said it “has assessed this application in the context of the planning evidence on file and only Mr. Tinker’s (the planner for the applicant) qualified expertise was persuasive to the Board”.

He also wrote that “To give comfort to the LPOA the Board will continue to assess development applications on their individual merits and it will recognize that not all applications receive Board approval.”

It is also clear to me that if we really want to ensure that buildings “fit” in our community, we need more sophisticated tools, such as design guidelines that can be enforced, site plan approval, and more listing and designation of heritage buildings and streetscapes.

About Geoff Kettel 223 Articles
Geoff Kettel is a community connector and advocate for “making places better”. He is currently Co-President of the Leaside Residents Association, Co-Chair of the Federation of North Toronto Residents‘ Associations (FoNTRA), member of the Toronto Preservation Board and Past Chair of the North York Community Preservation Panel. He writes a monthly column on heritage and planning in Leaside Life.