Ontario



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Ontario Municipal Board

Commission des affaires municipales de l’Ontario

ISSUE DATE:

September 27, 2012

PL111307

|IN THE MATTER OF subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended |

|Appellant: |Vera Felgemacher & Wyatt McGillis |

|Applicant: |Sarah McDougall |

|Subject: |Minor Variance |

|Variance from By-law No.: |2585 |

|Property Address/Description: |226 Centre St. N. |

|Municipality: |Town of Whitby |

|Municipal File No.: |A-61-11 |

|OMB Case No.: |PL111307 |

|OMB File No.: |PL111307 |

APPEARANCES:

|Parties |Counsel*/Agent |

| | |

|Sarah McDougall |E. D. Dowling* |

| | |

|Vera Felgemacher and Wyatt McGillis |V. Felgemacher |

DECISION DELIVERED BY C. CONTI AND ORDER OF THE BOARD

Introduction

This is an appeal by Vera Felgemacher and Wyatt McGillis (Appellants) against the approval by the Town of Whitby Committee of Adjustment of an application by Sarah McDougall (Applicant) for a minor variance to Zoning By-law No. 2585 to permit the provision of visual art classes as a home occupation on a property, at 226 Centre Street North, Whitby.

The subject property is within a low density residential area characterized by older homes, adjacent to the downtown core of the Town of Whitby. The property is on the southwest corner of Centre Street North and John Street with approximately 66 feet of frontage on Centre St. North. The property contains a two-storey brick dwelling with a detached garage.

It is proposed that the visual art classes take place inside the dwelling.

Required variances

The proposal requires the following variance to Town of Whitby Zoning By-law No. 2585:

1. To permit visual art classes to be conducted on the subject property as a home occupation.

This is the same variance that the Committee of Adjustment approved.

Issue

The main issue in this appeal is whether the proposed variance meets the four tests under subsection 45(1) of the Planning Act. Key determinations for the Board, in this regard, are whether the relevant planning documents prohibit the provision of visual art classes as a home occupation and if the proposal is required to be classified as a commercial school by the relevant planning provisions.

Evidence

The Board heard evidence from the Appellants.

The Board heard evidence on behalf of the Appellants from Nancy Shanks and Eden Jeffery, both of whom are area residents and were granted participant status in the appeal.

The Board heard evidence from the Applicant.

The Board heard evidence on behalf of the Applicant from Kevin Tunney, Principal of Tunney Planning Inc. Mr. Tunney is a member of the Canadian Institute of Planners, who has approximately forty years of experience in the planning field. He was qualified by the Board as an expert in land use planning.

The Board heard evidence from Kathryn Kram, Planner 1 with the Town of Whitby Planning Department and Secretary-Treasurer of the Whitby Committee of Adjustment who appeared under summons by the Applicant. Ms. Kram is a provisional member of the Ontario Professional Planners Institute with approximately two years of experience. She was qualified by the Board as an expert in land use planning.

The Board also heard evidence on behalf of the Applicant from Bob Patterson and Patricia Tran, both of whom live in close proximity to the subject property.

Relevant facts

Based upon the evidence and submissions, the Board has determined that the following facts are relevant to this appeal.

The subject property is designated Low Density Residential in the Downtown Secondary Plan under the Town of Whitby Official Plan and is subject to the provisions of section 11.3.6 (Exhibit 2, Tab 1, p. 5). The designation permits the residential use of the lands as the primary use of the property and permits home occupations through section 4.2.3.1 (d) (Exhibit 2, Tab 1, p. 2).

The property is zoned R2-DT, Residential Zone 2 – Downtown Zone, in Whitby Zoning By-law No. 2585. The R2-DT zone permits the low density residential use and home occupations. Home occupations must comply with the provisions of section 26.4.2.3 of the By-law (Exhibit 2, Tab 3, pp. 9 and 10) which requires the following:

1. The home occupation must be conducted entirely within the dwelling unit by the occupant,

2. The dwelling unit must be the principal residence,

3. The occupant may employ or be assisted by no more than one person,

4. The home occupation shall occupy no more that the lesser of 250 square metres or 25 % of the gross floor area,

5. The home occupation shall not create or become a nuisance,

6. The home occupation shall be secondary to the principal residential use of the dwelling,

7. There shall be no exterior alteration to the dwelling to permit the home occupation,

8. Outdoor storage of equipment, goods, wares or merchandise is prohibited,

9. No goods, wares or merchandise shall be offered or exposed for sale on the premises other than the goods or crafts produced on the premises,

10. One additional parking space shall be provided on-site in addition to the spaces required for the dwelling unit.

The By-law defines home occupation as follows:

Home occupation means any professional or business office, personal service, or creation of handicrafts which is carried on as an accessory use to a dwelling unit which is the principal residence of the person or persons who are conducting the professional or business office, personal service or creation of handicrafts. A home occupation shall not include a boarding or lodging house, bed and breakfast establishment, eating establishment, or retail store (Exhibit 2, Tab 3, p. 10A).

The Applicant purchased the property in 2010 and renovated the dwelling which was in a state of poor repair. She has been providing visual art classes for children in one room on the main floor of the dwelling.

The Applicant was informed by the Town that the use of the house for providing visual art classes is not permitted on the subject property. Subsequently, the Applicant filed the minor variance application. The need for the application was precipitated by complaints from the Appellants who live at the southwest corner of Centre St. N. and John Street, directly across Centre Street from the Applicant.

The Committee of Adjustment approved the minor variance subject to the following conditions:

1. That the site grading and all other services conform to the requirements of the Public Works Department.

2. That the gross floor area occupied by the home occupation be limited to 11 square metres.

3. That the maximum number of students/seats per class will be six.

4. That the classes be limited to 14 hours per week.

5. That the classes be limited to Monday through Saturday.

6. That no more than three classes shall be held in one day.

7. That no employees shall be permitted to assist the occupant.

Issues, analysis and findings

The Board has carefully considered the evidence provided by the parties and participants including the authorities provided by the Appellants.

The Appellants contend that the proposed variance violates the relevant provisions of the Region of Durham and Town of Whitby Official Plans, as well as those of Zoning By-law No. 2585. They contend that the visual art classes that have been provided by the Applicant have created traffic issues in the area. They maintain that the provision of visual art classes is not suitable in a residential area, it should not fall under the definition of home occupation and it should be classified as a commercial school. As a commercial school, the Appellants contend that the proposed use of the property does not meet the intent of the By-law and requires a rezoning. The Appellants rely upon letters from the Town to the Applicant, forwarded as a result of the Appellants’ complaints, which indicate that provision of visual art classes does not fall within the definition of home occupation, but should be considered a commercial school (Exhibit 1, Tabs 15 and 18). Based upon these concerns, the Appellants contend that the proposed variance does not meet the four tests under subsection 45(1) of the Planning Act.

The Applicant maintains that the visual art class business operates at a small scale for only a few hours each week. The Applicant contends that any increase in traffic is minor and does not cause significant problems. In the Applicant’s opinion, the letters from the Town were not a definitive expression of its position. The Applicant maintains that the proposed use falls within the definition of a home occupation and can be considered as the creation of handicrafts. The Applicant’s evidence is that the proposed variance complies with all relevant provisions of the Official Plans, Zoning By-law No. 2585 and meets the four tests under subsection 45(1) of the Planning Act.

It is clear to the Board that the essential dispute between the parties involves whether the provision of visual art classes is allowed as a home occupation under the Official Plans and By-law or whether this activity must be classified under the By-law as a commercial school. In addition, the Board must determine if the activity, at the level proposed, creates or could become a nuisance.

After considering the evidence and the relevant provisions of the Official Plans and Zoning By-law, the Board has determined that the critical matters in deciding whether or not the proposed variance meets the four tests under subsection 45(1) of the Planning Act are the following:

1. Is the conducting of visual art classes on the subject property, in some way, prohibited in the definition of home occupation?

2. Does the definition of commercial school in the By-law necessarily include the provision of all visual art classes regardless of the location and the level of activity proposed?

3. Will the variance cause negative traffic impacts or create a nuisance in any way?

The answers to these questions are the significant matters in deciding if the variance maintains the purpose and intent of the Official Plan and of Zoning By-law No. 2585, if it is desirable, and if it is minor.

With regard to the first item above, the definition of home occupation does not specifically allow the provision of art classes or specifically prohibit them. The definition identifies the permitted types of activities in fairly broad terms, such as “any professional or business office”, while the excluded uses are more specific, such as “bed and breakfast establishment” and “eating establishment”. The Board expects that if the intent of the By-law had been to exclude the conducting of visual art classes, art instruction, or instruction of any type as a home occupation there would have been specific mention of it in the definition or the use would have been excluded as a home occupation through another section of the By-law.

The expert opinion of Mr. Tunney was that the proposed activity could appropriately be classified as “creation of handicrafts”. Ms. Kram’s evidence was that the proposal involves activities that are closer to those allowed through home occupations than those of a commercial use.

The Board agrees with these assessments of the proposed activity. The activity, at least in part, can be considered the creation of handicrafts in that the end result of art classes for children can be classified as handicrafts. Furthermore, the nature and extent of the activity, as long as the level of the operation is limited, as proposed in the Committee of Adjustment’s conditions, is similar to the types of activities allowed as home occupations.

Based upon the above considerations, the Board finds that the conducting of visual art classes is not prohibited by the definition of home occupations in the By-law.

With regard to item # 2 above, the Board recognizes that the By-law’s definition of commercial school refers to, “a building or structure or portion thereof in which instruction is provided for profit or gain, to pupils in subjects such as business, secretarial skills, driving, language, modelling, music, art, photography, handicrafts, or other similar subjects, but shall not include a school or private school as defined herein” (Exhibit 1, Tab 49, p. 197). However, the Board does not interpret the definition as limiting instruction activities for profit to only commercial schools, or indicating that wherever a portion of a building is used for instruction activities for profit that the portion of the building constitutes a commercial school.

The activities allowed as home occupations, in the By-law’s definition, are broad enough that they could logically include training activities carried out for profit in a number of fields. Business and professional offices are permitted as home occupations. Surely, the intent of the By-law cannot be to classify any minor degree of instruction that might be carried out in association with a professional office in a home as a commercial school. Furthermore, if the definition of commercial school were interpreted in the strict manner that the Appellants are proposing, any individual providing piano lessons to one or two students in his or her home would be operating a “commercial school” and would need a rezoning if they were located in a residential zone. The Board considers this to be an unreasonable interpretation of the By-law which goes beyond its intent. In the Board’s view, the level of activity must be a determinative factor in deciding if a proposed enterprise, in which a fee is charged for instruction, falls within the definition of a home occupation, or should be considered a commercial school and therefore, would not be permitted in a residential zone. This is consistent with section 4.2.3.1 (d) of the Whitby Official Plan, which indicates that home occupations are intended to permit small-scale commercial uses (Exhibit 2, Tab 1, p. 2).

The evidence of the Applicant is that classes have been provided for approximately 14 hours/week and they do not take place during the summer months. The conditions placed upon the variance approval by the Committee of Adjustment would limit the hours of instruction to a maximum of 14 hours per week, three classes per day and six students per class. The Applicant has agreed to these conditions. If the level of activity is controlled in the manner proposed, in the Board’s view, the activity could appropriately be considered as a home occupation under the By-law.

With regard to the previously noted letters from the Town which indicate that the Applicant’s activity does not fall within the terms of a home occupation, the Board agrees with the Applicant that these letters do not define the Town’s final position. In the Board’s view, these letters are simply raising the possibility of an infraction caused by the Applicant’s activity, which must be brought into compliance with the By-law. The Board notes that in later correspondence the Town indicates that the Applicant can pursue either a variance application for her proposal or a by-law amendment (Exhibit 1, Tab 19). Furthermore, the definitive position of Town planning staff is provided by Planning Director’s report to the Committee of Adjustment, which supports the approval of the minor variance (Exhibit 2, Tab 6).

Based upon these considerations, the Board finds that, because the number and hours of visual art classes and the number of students will be controlled and maintained at a low level, the provision of art classes as proposed by the Applicant can be classified as a home occupation and does not need to be defined as a “commercial school” under the By-law.

With regard to item # 3 above, the Appellants have undertaken detailed observations of traffic movements in the vicinity of the subject property (Exhibit 1, Tabs 37 to 40). Based upon their observations and 15.5 hours of classes per week, they estimated that 168 vehicles each week would be coming to and leaving the Applicant’s house for art classes (Exhibit 1, Tab 40). The Appellants estimated the number of class hours per week based upon information from the Applicant’s website. The Appellants also observed many instances of what they considered to be improper traffic movements (Exhibit 1, Tab 39). Based upon their observations, the Appellants concluded that the increase in traffic would cause a nuisance and that the provision of art classes should not be permitted as a home occupation.

Mr. Tunney provided evidence on 24-hour traffic counts obtained from the Town of Whitby Public Works Department (Exhibit 2, Tabs 9 and 10). These numbers indicate that in the range of 500 vehicle trips/day travel on Centre Street between John and Mary Streets. Mr. Tunney estimated that the proposal could cause a 2 or 3% increase in vehicle trips, which he considered to be insignificant.

The Board heard no evidence from traffic or transportation experts at the hearing. There is no doubt that the provision of art classes with the proposed level of activity will cause an increase in traffic during the times that the classes are beginning and ending when children are being dropped off and picked up. The Board notes Ms. McDougall’s evidence that a number of her current students walk or car pool to the classes, which may reduce the number of vehicle trips. However, the evidence is that there will be an increase in vehicle traffic at the times of the classes.

It is difficult from the evidence to draw any firm conclusions about the significance of the increase. Minor increases in traffic can result from any home occupation. The proposal may result in more traffic than other home occupations. However, the Board has no evidence about the capacity of the streets in the area and the level of increased traffic which would cause safety issues or create a nuisance. From the evidence, the Board cannot conclude that the proposal will cause an unacceptable increase in traffic.

The Appellants also raised concerns about the Applicant’s operation causing parking issues. The evidence of Mr. Tunney is that the driveway can accommodate five cars (Exhibit 2, Tab 4, p. 13). He indicated that the By-law requires two spaces for a single detached dwelling and that home occupations require only one additional parking space. Based upon the evidence, the Board concludes that the driveway should be able to accommodate longer period parking that may be required for the art classes, and any parking issues will be only for short periods of time, likely during the period when children are being dropped off or picked up. Given the limits placed on the number and hours of classes and number of students, the Board finds that these issues should not be significant and should not constitute a nuisance.

While the Appellants raised concern about traffic and nuisance issues, and some residents of the area also raised these concerns, it should be noted that residents living in closest proximity to the Applicant, apart from the Appellants, did not identify concerns about traffic, parking or nuisance issues.

The Appellants’ evidence has not established that the Applicant’s operation will cause a nuisance related to traffic or for any other reason. Based upon the above, the Board concludes that the proposal will not violate the By-law’s requirement that the home occupation should not create a nuisance.

In conclusion, the Board finds that the provision of visual art classes can be considered a home occupation provided the activity is kept at a low level, which will maintain the business activity at a level consistent with other home occupations and prevent the activity from creating a nuisance. Therefore, the Board finds that with the limits placed on the art classes through the Committee of Adjustment conditions, the proposed activity qualifies as a home occupation and does not require a zoning by-law amendment to permit operation of a commercial school.

In recognition of these findings, the evidence demonstrates that the variance complies with the other relevant provisions of the Official Plans and By-law. The Appellants contend that the proposal would not be compatible with the surrounding area and therefore, does not comply with section 8B.2.1 of the Region of Durham Official Plan (Exhibit 1, Tab 47, p. 189). However, the Board finds that if the Applicant’s proposal is limited through the conditions imposed by the Committee of Adjustment, there should be no compatibility issues.

Mr. Tunney’s evidence was that the proposal complies with the provisions of the Whitby Official Plan. More specifically, Mr. Tunney maintains that the variance complies with all provisions of section 4.2.3.1 (d) (Exhibit 2, Tab 1, p. 2) which sets out the requirements for home occupations. Mr. Tunney noted that the Official Plan allows home occupations without amendment to the Plan and small scale commercial operations are permitted, as is being proposed by the Applicant. The Official Plan has requirements for parking which will be met by the proposal and the traffic generated will not be in excess of that normally experienced in residential neighbourhoods, as required in section 4.2.3.1 (d) (v) (g). Mr. Tunney also indicated that the other provisions of section 4.2.3.1 (d) for restricting floor area devoted to the home occupation, avoiding signage or display of merchandise, storage, and avoiding processes which cause noise, vibration, etc. are all met by the proposal. The Appellants evidence has not established that any provision of section 4.2.3.1 (d) will be violated by the variance.

Based upon these considerations, the Board finds that the proposed variance meets the general purpose and intent of both the Region of Durham and Town of Whitby Official Plans.

Mr. Tunney’s evidence is that the proposed variance complies with the provisions of Zoning By-law No. 2585. The By-law permits home occupations in the R2-DT zone and the proposal meets all requirements of section 26.4.2.3 for home occupations. Mr. Tunney indicated that the proposal will occupy only about 5 % of the gross floor area of the dwelling, whereas the By-law permits home occupations to occupy up to 25%. The activity will be carried out entirely in the dwelling and will not involve instructors other than the Applicant. As noted earlier, the activity will not create a nuisance, it will be a secondary use of the dwelling, it will involve no exterior alteration and no outside storage. No goods will be offered for sale other than those produced on site and as noted earlier adequate parking will be provided.

Based upon the above considerations, the Board finds that the variance maintains the general purpose and intent of Zoning By-law No. 2585.

Mr. Tunney provided the opinion that the variance is minor. The restrictions placed upon the proposed activity will maintain it at a scale to ensure that the variance is minor and has no significant negative impact. Mr. Tunney noted that there are many types of instructional activities that take place in residential areas ranging from music lessons to tutoring for school subjects. The suitability of these activities in residential areas is a question of scale, and the conditions imposed by the Committee of Adjustment ensure that the scale will be kept at a low level so that the variance is minor.

Based upon these considerations, the Board finds that the variance is minor.

Mr. Tunney also maintains that the proposal is desirable and appropriate for the use of the land. It provides an opportunity for the Applicant to earn some income from her home by providing art instruction to children. The limit on the number of students and hours ensures that there is no negative impact.

Based upon the evidence, the Board finds that the variance is desirable for the use of the lands.

In consideration of the above, the Board finds that the variance, if the proposed visual art classes are limited by the conditions imposed by the Committee of Adjustment meets the four tests under subsection 45(1) of the Planning Act.

The Board has reviewed the authorities submitted by the Appellants and finds that they can be distinguished from the current appeal. In the Decision of the Board, A. Hart v. Town of Newmarket, (2007) OMBD 2509, the appeal was allowed against a proposed commercial home occupation in large part because the commercial use would occupy the majority of the gross floor area of the dwelling. That is not the case in the current appeal.

The Board Decision, Stephen Emery v. Town of Oakville (2005), OMBD 0422, involved a proposal to allow clients to visit a home for treatment, where the By-law specifically prohibited client visits in residential areas. In the current case, the By-law’s home occupation provisions do not prohibit the conducting of classes, rather the provisions are silent on the matter.

The Board has found nothing in any of the cases provided by the Appellants that would cause it to alter its findings in the current case.

Conclusion

The expert planning evidence, in support of the Applicant, is uncontradicted.

The Board recognizes the level of the Appellants concern, the extent of the documentation they provided, and their efforts in preparing for the appeal and presenting their case. However, in reviewing the relevant planning documents and the nature of the proposed variance, the Board agrees with the expert evidence provided on behalf of the Applicant and finds that a reasonable interpretation of the planning provisions would allow a limited number of visual art classes on the subject property as a home occupation.

In making its Decision, the Board is cognizant of subsection 2.1 of the Planning Act, whereby the Board must have regard for the decision of the planning authority. The Board has had regard for the decision of the Committee of Adjustment in arriving at its findings in this appeal.

The Board adopts the conditions imposed by the Committee of Adjustment and will apply them to the approval of the variance in the Order provided below.

Based upon the above considerations, the Board will dismiss the appeal and authorize the variance subject to the above-noted conditions.

The appropriate Order is provided below.

Order

THE BOARD ORDERS that the appeal is dismissed and the variance to Town of Whitby Zoning By-law No. 2585 is authorized subject to the following conditions:

1. That the site grading and all other services conform to the requirements of the Public Works Department.

2. That the gross floor area occupied by the home occupation be limited to 11 square metres.

3. That the maximum number of students/seats per class will be six.

4. That the classes be limited to 14 hours per week.

5. That the classes be limited to Monday through Saturday.

6. That no more than three classes shall be held in one day.

7. That no employees shall be permitted to assist the occupant.

So Orders the Board.

“C. Conti”

C. CONTI

MEMBER

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