Ruling No.: 21-05-1179
Application No.: S-2020-20
BUILDING CODE COMMISSION
IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended.
AND IN THE MATTER OF Article Sentence 8.2.1.3.(2) and Table 8.2.1.3.B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by the Board of Manager Members of St. Paul’s Presbyterian Church, for the resolution of a dispute with Ed VanderWindt, Chief Building Official, to determine whether the as-installed Class 5 sewage system serving an existing church building, provides sufficiency of compliance with Sentence 8.8.1.1.(1) and Article 8.8.1.2. of Division B of the Building Code at 526 Carluke Road West, Ancaster, Ontario.
APPLICANT Janice Currie and Gerrard Degelder
Board of Manager Members
St. Paul’s Presbyterian Church
Ancaster, Ontario
AND
RESPONDENT Ed VanderWindt
Chief Building Official
City of Hamilton, Ontario
PANEL Katherine Rentsch, Chair Designate
Judy Beauchamp
Michael Gooch
PLACE Teleconference
DATE OF HEARING February 11, 2021
DATE OF RULING February 11, 2021
APPEARANCES
Janice Currie (representing)
Board of Manager Members
St. Paul’s Presbyterian Church, Ancaster, Ontario
The Applicant
Ed VanderWindt
Chief Building Official
City of Hamilton, Ontario
The Respondent
Roberto Stumpo
Building Engineer
City of Hamilton, Ontario
Designate for the Respondent
George Wong
Building Engineer
City of Hamilton, Ontario
Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant applied for a Building Permit to install a class 5 sewage system (holding tank) in February of 2014 to service the existing St Paul’s Presbyterian Church at 526 Carluke Road West in Ancaster, in the City of Hamilton. The application was denied, and the Applicant subsequently installed the Class 5 system in October 2015. Current attempts to obtain a permit for the Class 5 system have been denied by the City of Hamilton, on the grounds that the Applicant has not provided sufficient information to show a Class 4 sewage system cannot be constructed on the site. An Order to Comply has been issued by the City of Hamilton under the Building Code Act, 1992.
The subject property is approximately 0.40ha. In addition to the church, constructed in 1846, there is garage and manse on the property. The manse is serviced with its own Class 4 sewage system consisting of a septic tank and raised leaching bed. There is a valid permit for this system from 2006.
The church itself faces Carluke Road and is surrounded by 30 parking spaces on the remaining three sides.
The church has a main floor and basement, which is serviced with 2 washrooms (each with a sink and toilet) and 4 sinks within the kitchen. It has a maximum capacity of 90 persons. Both parties agree to the calculated design flow of 3,240 litres per day (lpd).
The size of the lot is limited and may or may not permit the installation of a Class 4 septic system.
The dispute centres on whether or not, the proposal to use a Class 5 system (holding tank) in lieu of a class 4 system, provides sufficiency of compliance with Sentence 8.8.1.1.(1) and Article 8.8.1.2 of Division B of the Building Code.
Both parties agreed that the total flows for the site are less than 10,000 lpd.
2. Provisions of the Building Code in Dispute
Division B, Article 8.8.1.1. Prohibited Installation states:
(1) Except as provided in Article 8.8.1.2., a Class 5 sewage system shall not be installed.
Division B, Article 8.8.1.2. Acceptable Installation states:
(1) A Class 5 sewage system may be installed in the following circumstances:
(a) where the proposed use of the sewage system is for a temporary operation, excluding seasonal recreational use, not exceeding 12 months in duration,
(b) to remedy an unsafe sewage system where the remediation of the unsafe condition by the installation of a Class 4 sewage system is impracticable,
(c) to upgrade a sewage system serving an existing building, where upgrading through the use of a Class 4 sewage system is not possible due to lot size, site slope or clearance limitations, or
(d) as an interim measure for a lot or parcel of land until municipal sewers are available, provided that the municipality undertakes to ensure the continued operation of an approved hauled sewage system until the municipal sewers are available.
(2) Where a Class 5 sewage system is installed, a written agreement for the disposal of sanitary sewage from the sewage system shall be entered into with a hauled sewage system operator.
3. Applicant’s Position
The Applicant provided a brief history of the issues related to the sewage system for the St Paul’s Presbyterian Church. The church was established in 1846 and has weekly services. In addition to these services there are a few social meetings, youth group meetings, and a yearly dinner. Prior to 2014, it was determined that the existing septic system servicing the church was not functioning adequately and needed to be replaced. The Board of Manager members contacted the municipality, and they were subsequently directed to retain an engineer to review the issue and recommend a solution. An engineer was retained and prepared a letter identifying the system as an unsafe situation and recommending a holding tank given the limited available area and the existing parking.
The church members applied for a building permit in 2014 and this was denied by the municipality on the basis that insufficient information had been provided to show that a class 4 system could not be constructed on the site. The holding tank was installed without a permit in October of 2015. Since that time, it has been pumped twice yearly.
The Applicant stated that there is a small grass area in the front of the church and the only other available area is the existing parking. There are approximately 30 parking spaces surrounding the church.
It was noted that the septic system servicing the manse was upgraded in 2006 and the new sewage system is located at the rear of the manse. The well for both the church and the manse is located in the front of the manse. It is unknown if it is a dug well or a drilled well.
The Applicant expressed concern with the potential loss of any parking. They typically have approximately 55 to 60 people in attendance on Sunday and the average age is approximately 70. The church is located on Carluke Road which has a rural road cross section with gravel shoulders and deep ditches. Carluke Road itself is a connector to Hwy 6, Hwy 3 and the 403 and as such is deemed to be unsafe for side road parking. The church is in a rural area without transit and therefore members must drive to the site.
In November of 2019, the Church received an Order to Comply and are at a standstill to resolve the situation. Based on discussions with the municipality, the Applicant applied to the BCC to resolve the dispute.
The Applicant’s position is that there is insufficient area on the site to install a class 4 system and that a class 5 system is required.
In response to questions, it was noted that the soils in the area are likely clay.
4. Respondent’s Position
The Respondent indicated that they received a building permit application on February 12th, 2014, for the Class 5 system to service the existing church. It was accompanied by a letter from an engineer advising that that the installation of a holding tank was necessary to remedy an unsafe condition caused by the “failure of the tank” component, of the former septic system serving the church. The letter further indicated that site constraints, such as limited grass area, the existing parking area and an existing Class 4 system serving the manse building, leave “no available space for a Class 4 system.”
However, the Respondent felt the application provided insufficient information to show that a Class 4 system could not be located on the property and denied the application.
The file remained open until 2019, when they discovered that a holding tank had been installed to service the Church, and an Order to Comply was issued in November of 2019.
The Respondent reviewed the OBC and the available clauses to allow the use of a holding tank.
They noted Article 8.8.1.1. Sentence (1) which prohibits the use of a holding tank except as provided in Article 8.8.1.2.
The Respondent reviewed Article 8.8.1.2. with respect to the acceptable conditions for installation including the following:
(1) A Class 5 sewage system may be installed in the following circumstances:
(a) where the proposed use of the sewage system is for a temporary operation, excluding seasonal recreational use, not exceeding 12 months in duration.
The Respondent noted this was not a temporary facility and this clause did not apply.
(b) to remedy an unsafe sewage system where the remediation of the unsafe condition by the installation of a Class 4 sewage system is impracticable,
The Respondent was not given sufficient information to show that a Class 4 system could not be constructed, although it would likely require removal of some of the parking area.
(c) to upgrade a sewage system serving an existing building, where upgrading through the use of a Class 4 sewage system is not possible due to lot size, site slope or clearance limitations, or
The Respondent was not given sufficient information to show that installation of a Class 4 system was not possible due to site restrictions.
(d) as an interim measure for a lot or parcel of land until municipal sewers are available, provided that the municipality undertakes to ensure the continued operation of an approved hauled sewage system until the municipal sewers are available.
It was noted by the Respondent that municipal servicing is not available in this area and is not currently proposed. Therefore, this clause would not apply.
In considering the application the Respondent consulted with the City’s planning department about eliminating existing parking to accommodate a class 4 system. It was noted that removal of any parking spaces would create a contravention to the existing zoning bylaw. However, the OBC does not consider zoning regulations in the assessment for building permits.
The Respondent indicated that they had tried various options to permit the use of a holding tank and were not adverse to the use of a Class 5 system but could not approve this based on the information they had received and the limitations of the OBC. They understood the financial limitations of the Church but had insufficient information to show that a class 4 system could not be constructed on the site.
In response to questions, the Respondent confirmed that minimum Building Code setbacks/clearances would need to be met from the existing well, structures and property lines. It was also noted that the size of the leaching bed required to service the Church could be twice the size required for the manse, based on the total daily design sanitary sewage flows, and assuming no secondary or tertiary treatment is provided.
5. Commission Ruling
It is the decision of the Building Code Commission that the use of an as-installed Class 5 sewage system serving an existing church building, provides sufficiency of compliance with Sentence 8.8.1.1.(1) and Article 8.8.1.2. of Division B of the Building Code at 526 Carluke Road West, Ancaster, Ontario.
6. Reasons
i) Article 8.8.1.1. Prohibited Installation of Division B of the Building Code states:
(1) Except as provided in Article 8.8.1.2., a Class 5 sewage system shall not be installed.
Article 8.8.1.2. Acceptable Installation of Division B of the Building Code states:
(1) A Class 5 sewage system may be installed in the following circumstances:
(a) where the proposed use of the sewage system is for a temporary operation, excluding seasonal recreational use, not exceeding 12 months in duration,
(b) to remedy an unsafe sewage system where the remediation of the unsafe condition by the installation of a Class 4 sewage system is impracticable,
(c) to upgrade a sewage system serving an existing building, where upgrading through the use of a Class 4 sewage system is not possible due to lot size, site slope or clearance limitations, or
(d) as an interim measure for a lot or parcel of land until municipal sewers are available, provided that the municipality undertakes to ensure the continued operation of an approved hauled sewage system until the municipal sewers are available.
The Commission heard the following evidence and testimony:
That the church is not a seasonal use, therefore clause (a) is not applicable.
That municipal sewers are not available in the area nor are proposed to be available, therefore clause (d) does not apply.
That the previous sewage system servicing the church presented an unsafe situation.
That the existing parking spaces need to be maintained to meet existing zoning by-laws.
That minimum clearance distances would need to be applied that would severely limit the area available for a Class 4 system.
It is the Commission’s opinion that based on the existing site restrictions/constraints including, but not limited to, the existing well, structures and property lines, it is impracticable to install a Class 4 sewage system. Therefore, the application to use a Class 5 system sufficiently complies with clauses (b) and (c) of Sentence 8.8.1.2.(1).
It should be noted that this ruling is specific to the facts of this dispute and property and the above reasons should not be interpreted as a precedent setting ruling or statement(s).
Dated at the City of Toronto this 11th day in the month of February in the year 2021 for application number S-2020-20
Katherine Rentsch, Chair
Judy Beauchamp
Michael Gooch