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Writer's pictureRon Giofu

Town denies request for Laird Ave. SDU, front yard location a sticking point

Architectural drawing of proposed structure.
Architectural drawing of proposed structure on Laird Ave. .

Despite an administrative recommendation to the contrary, Amherstburg town council has unanimously denied a request for a secondary dwelling unit (SDU) on Laird Ave.


The contentious issue came up at the Aug. 12 meeting and featured a 25-page report on the agenda that arrived at the recommendation with two options council could have chosen to let it proceed. Council members instead rejected it, citing concerns that were raised mainly over the front yard location, the structure’s height and distance from the main home. 


The front yard location was of particular concern to many on council and that they don’t want to see such front yard locations anywhere else in town either.


Mayor Michael Prue said there were “deficiencies” that he had with the proposal, including side yard setbacks, balconies, the building height and the distance of the unit from the main home.


Voting no to the request was “defendable and refutable,” said Councillor Peter Courtney. 


Courtney said the bylaw says “not in the front yard.” He said he was not convinced to allow it based on what he read in the report from town staff and consultants and what he heard from administration. 


Councillor Linden Crain made the motion to deny the application believing “it does not meet our current zoning bylaw 1999-52 and I’m not prepared to allow ADU’s (alternate dwelling units) in front yards at this time.”


McArthur thanked administration for its report but “there’s two sides to every coin.” He said there was a zoning bylaw put in place “with full knowledge” of waterfront properties of the characteristics of Amherstburg and the ADU’s that already existed in lakefront areas. The council of the day supported the zoning bylaw in 2019 not to allow ADU’s in front yards, he said.


“I disagree vehemently but politely with administration’s assertion that we are prohibiting ADU’s if we don’t want them in front yard,” he said. “I think that’s like saying the Government of Ontario prohibits driving. They don’t. The Government of Ontario puts what they believe are reasonable limits on drivers. You have to be 16. You have to pass a test. It’s not a prohibition. By saying we don’t want them on front yards, I think we are making a conscious choice as a community that it would hurt the character of the town and be needlessly disruptive to the current character of the town.”


McArthur added the town is updating the Official Plan and zoning bylaw and they are guiding documents. If they are “changed on the fly,” it’s not honouring the spirit of the documents.


“I think if we are going to allow them in front yards, it should only happen as part of a broader community discussion of the Amherstburg we want in the future,” said McArthur.


The request to allow a distance of 48.7m setback from the main home as opposed to the current 20m distance was mentioned by McArthur.


“Once you go to 48.7, you can go to 200m because you are no longer following your regulations and you are making it up on the fly,” he believed. “I think the 20 to 48.7, when you look at the aerial map, it’s significant when you look at the properties and it’s a severance by stealth. It’s no longer an accessible dwelling unit, it’s a dwelling unit.”


Deputy Mayor Chris Gibb also thanked staff and the consultants for their “very comprehensive report.” He also appreciated the negotiation of “a more palatable option for us to consider but at the end of the day, the distances need to be tested, if it comes to that, by the (Ontario) Land Tribunal. I don’t want to see ADU’s in front yards in Amherstburg.”


Gibb admitted it was a gamble as he believed “we’re more than likely going to lose if it goes to the OLT (Ontario Land Tribunal).”


“I want to see us do that. I want to see us question that. We have to build a town we can enjoy and we want to determine how it goes,” said Gibb. “I think the fight is worth it.”


The deputy mayor said the town has to step in and defend rights of the residents, he added.


“ADU’s are new. We need to think carefully how and where they’re being built to ensure it does not diminish the character of our community,” added Crain.


While the province wants municipalities to build houses faster “but in some cases they are not providing the tools and guidelines to effectively do that. With appeal rights being diminished, now the municipalities have to take a stand for residents’ voices that cannot be heard.”


Prue added he has seen many changes to appeal rights over the last 35 years. He believed the public has no right to appeal and that council has to be the one’s to defend them.


“There’s no one else to stand up for them. If this council wants to defend them, I will support that. I think it’s important the people have a voice and their voice is us,” said the mayor.


Prue not only wanted the request denied because it’s in the front yard, but also due to the proximity from the main home. He also noted an increase requested for the height of the proposed structure. He also voiced objections to proposed balconies on the proposed SDU and other setbacks.


If the town “hires the right person” if it goes to the OLT and the town opposes it in totality, Prue was confident in a “reasonable chance” of success.


Councillor Diane Pouget also thanked staff and consultants but also the residents of Laird Ave. for standing up for what they believe in.


“The number one reason I’m voting against it is because it’s precedent setting,” she said.


Concerns over the town’s ability to control the tenancy of the unit was mentioned by Pouget. She believed there are setbacks that have to be enforced and she also noted the distance from the SDU and the proposed height changes.

A report from manager of planning services Christopher Aspila and town planner Janine Mastronardi stated the professional planning analysis, recommendation and rationale determined by administration was vetted through a third party professional planner. MillerSilani Inc., represented by Kevin Miller and Larry Silani, were on hand to field questions from council members.


Deputy CAO/director of development services Melissa Osborne said at the start of the debate if council were to refuse the request, a planning rationale would have to be given. Osborne said there were a lot of concerns from the community on this file and a consultant was used to help vet concerns. She said the town wanted “a second set of eyes” on the matter so their recommendation could be made with additional confidence.


“By way of this comprehensive professional planning analysis report, Council is being asked to support Administration’s recommendation for the proposed Zoning By-law Amendment to grant relief for a proposed Secondary Dwelling Unit that would be built atop of an existing accessory structure in the front yard of 24 Laird Avenue. It should be noted the applicant, upon hearing the comments and concerns at the SPM (statutory public meeting), provided an amended submission, which is what the planning opinion is based upon,” the report stated.


The conclusion of the report noted “it is the opinion of administration that the Zoning Bylaw Amendment allows for the appropriate development of the subject lands, is consistent with the provisions of the Planning Act, is consistent with the policies of the Provincial Policy Statement, 2020, conforms with the policies of the County of Essex Official Plan and the Town of Amherstburg Official Plan and maintains the intent of the Town of Amherstburg Zoning Bylaw.”


Regarding locating it in the front yard, the report noted “in the context of Essex County and Windsor, with extensive lengths of waterfront property along the Lake Erie, Detroit River and Lake St. Clair shorelines, it is very common to see primary dwellings built at the rear of properties and carriage houses / secondary dwelling units located in the front yard.” The report also states that due to the “unique configuration of the lot at 24 Laird Ave. S.,” the current zoning on the property prohibiting a front yard SDU “does not conform to the provisions of the Planning Act” and “the proposed rezoning brings the zoning into conformance with the Planning Act.”


Mastronardi told town council that concerns were addressed in the report. She said town staff met with the proponent to address some concerns, noting the applicant has agreed to reduce the size of the proposed structure to 1,025 square feet. To mitigate privacy concerns, she said two mature trees with a minimum height of 14-feet were to be planted.


McArthur believed the only reason town council was hearing the matter rather than the committee of adjustment was due to the matter of it being requested for a front yard. Aspila said there is a prohibition of front yard SDU’s “and the applicant is requesting relief from that provision of the zoning bylaw.” Aspila added that prohibition came into effect in 2019, with Mastronardi adding Amherstburg was one of the first municipalities to deal with the issue through Official Plan and zoning bylaw amendments and “there was no one to look to” for comparisons at that time.


“This is our first kick at the can for these provisions and other municipalities waited longer,” she said, noting they wanted to keep on top of provincial legislation at that time.


On the issue of the 48.7 metre setback request between the primary and secondary dwelling units, the administrative report states the request to permit the 48.7m setback “maintains the intent of the zoning bylaw.”“The intent of the required 20m between a primary dwelling and secondary dwelling within an accessory structure was to ensure SDUs on agriculturally zoned properties did not remove too much agricultural land out of production. A farm parcel that stretches from concession to concession would not be able to have the primary dwelling fronting on one concession with the secondary dwelling fronting on the next concession. In writing the zoning provisions it was assumed that there would be few residentially zoned properties that would be able to accommodate accessory structures containing SDUs greater than 20m from the primary dwelling. If an instance occurred where a greater setback would be proposed minor variance or zoning approvals would be applied for allowing for each property to be assessed on its own merits,” the written report stated. “In the case of 24 Laird Ave. S., the proposed secondary dwelling unit will be located in an existing accessory structure after proposed renovations are complete. The building already existing and the lot configuration do not allow for compliance with the 20m setback. The intent of the ZBL regarding the 20m setback is that the secondary dwelling remains ancillary to the primary dwelling.”


Increasing the height from the permitted 5.5m to 7m was addressed in the report as well.


“Since the SDU zone provisions have been put in place, relief from the height provision for accessory structures to accommodate an SDU on the second floor of an accessory structure is a common request seen typically by the committee of adjustment. The current permitted height of 5.5 m was not amended in 2019 so that each request could be assessed on its own merits. However, the 2019 by-law did include provisions to allow SDUs above a garage which in most cases results in requests for relief in height,” the report stated.


McArthur questioned if allowing this would have been precedent setting, with Aspila noting front yard SDUs exist on Erie Ave., Goodview Ave., Mickle Dr. and Goodchild Beach.


“Every one has to be reviewed on its own merits,” said Aspila. He pointed out the province is encouraging SDUs in urban areas.


McArthur said reasonable parameters are not prohibition and believed they would be better in side or rear yards. Crain questioned from an OLT perspective, if council were to agree with this front yard allowance request but deny a future request, could the OLT look at it as “you did it for one now you’re not allowing it for the other.”


Osborne said the OLT looks at every instance individually and considers the whole application.


“It’s exceedingly difficult to say what the OLT would or wouldn’t consider when the only factor that we’re talking about is an ADU in a front yard,” she said.


Mastronardi said provincial legislation stated there shall be nothing in a town’s Official Plan or zoning bylaw that can prohibit an SDU. Osborne stated the Provincial Policy Statement (PPS) said SDU’s are permitted as a right in urban areas with “quite a number” of SDU’s going up in the community. Osborne and Aspila agreed SDU’s can’t be prohibited in the zoning bylaw or Official Plan.


“We have to base this (recommendation) on the existing Provincial Policy Statement that’s enforced today, the existing Planning Act that’s enforced today, the existing Official Plan that is enforced today and the existing zoning bylaw that is enforced today,” said Aspila. “We have to take all of these factors into consideration when we develop our professional planning opinion.”

Town denies request for Laird Ave. SDU, front yard location

By Ron Giofu

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