COURT FILE NO.: 94/04
DATE: 20051207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, CARNWATH AND SWINTON JJ.
B E T W E E N:
UMBERTO BASSO AND SYLVIA BASSO
Applicants
(Appellants)
- and -
CORPORATION OF THE TOWNSHIP OF KING, HELMET ROSINOWSKI, IRMGARD ROSINOWSKI, DAVID OLTHOF, WILMA OLTHOF, LARRY CROPLEY, DOROTHY CROPLEY, PETER BIASUTTO and SUSAN BIASUTTO
Respondents
(Respondents in Appeal)
Michael Melling and Amber Stewart, for the Appellants
Josephine A. Matera and Eileen P. Costello, for the Respondents
HEARD at Toronto: December 7, 2005
SWINTON J.: (Orally)
[1] The issue in this appeal is whether the Ontario Municipal Board erred in its decision of February 9, 2005, when it concluded that a bed and breakfast establishment, as defined in subsection 3(1) of the Oak Ridges Moraine Conservation Plan, O.Reg. 140/02, is not a permitted principal use of land under s.11(3) of the Conservation Plan.
[2] Section 3(1) defines “bed and breakfast establishment” to mean
“an establishment that provides sleeping accommodation (including breakfast and other meals, services, facilities, and amenities for the exclusive use of guests) for the travelling or vacationing public in up to three guest rooms within a single dwelling that is the principal residence of the proprietor of the establishment.”
[3] Section 5 of the Conservation Plan states:
“No person shall, except as permitted by this Plan,
(a) use land or any part of it;
(b) undertake development or site alteration with respect to land; or
(c) erect, move, alter or use a building or structure or any part of it.”
[4] Section 7 provides:
“Nothing in this Plan applies to prevent the use, erection and location of a single dwelling if,
(a) the use, erection and location would have been permitted by the applicable zoning by-law on November 15, 2001; and
(b) the applicant demonstrates, to the extent possible, that the use, erection and location will not adversely affect the ecological integrity of the Plan Area.”
[5] Section 11(3)(7) of the Conservation Plan includes a bed and breakfast establishment as a permitted land use in Natural Core Areas.
[6] The appellants’ land is in the Natural Core Area of the Oak Ridges Moraine and is accessible only by private road. There is no residence on the land, and none can be built on it because the applicable zoning by-law prohibits the erection of a building unless there is a minimum frontage on a public road. Indeed, the Agreed Statement of Facts before the Board stated at paragraph 13:
“The Subject Lands are designated “Natural Core Area” in the Oak Ridges Moraine Conservation Plan (“ORMCP”). Section 7 of the ORMCP provides that single family dwellings may be constructed in Natural Core Areas if such dwellings would have been permitted by applicable zoning as of November 15, 2001. Because the Subject Property does not have frontage on a public road, a single family dwelling was not a permitted use on November 15, 2001, and therefore is not a permitted use under the ORMCP.”
[7] We agree with the Board’s statement on p. 7 of the Reasons:
“The permitted use of a “Bed and Breakfast Establishment”, afforded by Section 11(3)7 of the Conservation Plan, is qualified by its definition in Section 3(1) and framed within the context of the legislation and the objectives of the Oak Ridges Moraine Conservation Plan. The Board finds that the definition of “Bed and Breakfast Establishment” limits such a use to a “single dwelling that is the principle [sic] residence” that is in existence or that is otherwise permitted by Section 6, 7, or 8 of the Conservation Act [sic].”
[8] Single dwellings are permitted in the Natural Core Areas in only three circumstances: if the dwelling existed on or before November 15, 2001; if a building permit was obtained prior to that date; or if the use was permitted by a zoning by-law before that date. None of these circumstances exist with respect to the appellants’ property.
[9] For these reasons, the appeal is dismissed.
THEN J.
[10] The appeal is dismissed for oral reasons of the Court delivered by Swinton J. Brief written submissions on the issue of costs to be made within 15 days of this decision.
THEN J.
CARNWATH J.
SWINTON J.
Date of Reasons for Judgment: December 7, 2005
Date of Release: December 16, 2005
COURT FILE NO.: 94/04
DATE: 20051207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, CARNWATH AND SWINTON JJ.
B E T W E E N:
UMBERTO BASSO AND SYLVIA BASSO
Applicants
(Appellants)
- and -
CORPORATION OF THE TOWNSHIP OF KING, HELMET ROSINOWSKI, IRMGARD ROSINOWSKI, DAVID OLTHOF, WILMA OLTHOF, LARRY CROPLEY, DOROTHY CROPLEY, PETER BIASUTTO and SUSAN BIASUTTO
Respondents
(Respondents in Appeal)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: December 7, 2005
Date of Release: December 16, 2005