An appeal to the Ontario Municipal Board (OMB) has been launched by lawyers for Jennark Homes over the passing of bylaw 2016-29 (ZBA-05-15) that prohibits secondary units/suites in any home less than three years old. This follows a variety of backlash over “duplex-gate” that saw Jennark build new homes on Aberdeen Blvd that look like single family dwellings from the street but arguably fit both a duplex and Midland’s loose secondary units definitions.
The interpretation by the builder, due largely to the ambiguous definitions allowed them to build the new homes and skip paying around $140,000 in development charges had the homes been classified as duplexes instead of single family homes with a secondary unit.
The heart of the OMB appeal is that the three year hold for any secondary units – so new homes cannot take advantage of the secondary unit provisions or income until 3 years passes is both “arbitrary and contrary to the spirit, purpose and intent of the Bill 140 amendments to the Planning Act”. The filing goes on to say that “arbitrary restrictions on second units is tantamount to people zoning, as it will tend to increase the likelihood that second units are in dwellings that are owner-occupied – a result which could not be directly mandated as it would be contrary to the Human Rights Code.”
The full appeal document is below and includes a submission from the Tiffin Homeowners Association (TFA) to have standing at the OMB appeal as they contend that this bylaw is not subject to appeal to the OMB.
The battle over secondary suites continues. Council and the planning department seems to have set the stage for this problem by having ambiguous language that allowed this confusion over duplex / house with secondary unit to happen in the first place. That same ambiguity seems to be the core reason as to why the town has been advised by their legal counsel not to pursue the $140k in development charges that could have been owed had they deemed Jennark’s new homes to be duplexes, something that would have been nearly impossible since both definitions could be applied to the buildings.
Instead of cleaning up the language to clearly define a duplex vs a home with secondary unit, Council opted to impose the restriction that a home cannot apply to have a secondary suite until three years had passed from it being built. That restriction is now the subject of an OMB appeal and will cost Midland ratepayers plenty of cash to defend.