Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: April 30, 2018

CASE NO.: 17-064

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant: Carlo Rizzo

Respondent: Niagara Escarpment Commission

Subject of appeal: Refusal of a Development Permit Application to construct a 1.5 storey single dwelling, a driveway, and an on-site sewage disposal system

Reference No.: P/R/2016-2017/465

Property Address/Description: Part Lot 8, Concession 1, WHS

Municipality: Town of Caledon

Upper Tier: Region of Peel

NEHO Case No.: 17-064

NEHO Case Name: Rizzo v. Ontario (Niagara Escarpment Commission)

Heard: April 9, 2018 in Caledon, Ontario

APPEARANCES:

Parties Carlo Rizzo (Self-represented) Niagara Escarpment Commission (Sean Stewart)

Participants Donna Acton (Self-represented) Fred Wipplinger (Self-represented) Janice James Barlow (Self-represented) Keith Carroll (Self-represented) Sharon Carroll (Self-represented) Carlo Dimitrio (Self-represented)

REPORT DELIVERED BY MAUREEN CARTER-WHITNEY AND GRAHAM REMPE

REASONS

Background

1Carlo Rizzo (“Appellant”) wishes to build a house on a property owned by his son, Antonio Rizzo, at 3 Berney Drive in the Town of Caledon (“Property”). Mr. A. Rizzo lives in a house on the Property. The proposal is to construct a second 1.5 storey detached house, as well as a driveway and on-site sewage system on the Property (“proposed development”).

2The Property falls within the Escarpment Rural Area (“ERA”) designation of the Niagara Escarpment Plan (2017) (“NEP”). As such, a Development Permit is required. An application for a Development Permit (“Application”) was made to the Niagara Escarpment Commission (“NEC”) in March 2017. NEC staff did not support the Application. At its meeting of October 19, 2017, the NEC refused the Application on the basis of inconsistency with Parts 2.2.7 and 2.2.11 of the NEP and lack of support from the Town of Caledon (“Town”) and the Region of Peel (“Region”). On October 24, 2017, the Appellant filed an appeal of the NEC’s refusal decision in accordance with s. 25(5.1) of the Niagara Escarpment Planning Development Act (“NEPDA”).

3A Pre-hearing Conference (“PHC”) was held on January 10, 2018 by telephone conference call. Nine area residents attended the PHC to request participant status, namely: Donna Acton, David Bartlett, Fred Wipplinger, Janice James Barlow, George Barlow, David Pirie, Keith Carroll, Sharon Carroll and Carlo Dimitrio. Participant status was granted to all nine, and subsequently confirmed by Order dated January 25, 2018.

4The appeal hearing took place on April 9, 2018 at the Caledon Town Hall. The Appellant acted on his own behalf and Sean Stewart attended as a Senior Planner for the NEC. Mr. Stewart elected to provide opinion evidence and not to represent the NEC as an advocate. Six of the nine participants attended in person. The Hearing Officers were advised that Mr. Pirie was unable to attend for medical reasons; however, he had provided a participant statement prior to the hearing and the Hearing Officers note that his concerns about the proposed development aligned with those expressed by the other participants.

Issue

5The issue is whether the NEC decision to refuse the Application should be confirmed and, in particular, whether or not the proposed development accords with the applicable development criteria in the NEP, specifically Parts 2.2.7 and 2.2.11.

Relevant Legislation, NEP and Provincial Policy Statement Provisions

6The relevant provisions of the NEPDA, NEP and Provincial Policy Statement, 2014 (“PPS”) are set out in Appendix 1 of this Decision and are specifically referred to below as necessary.

Discussion, Analysis and Findings

Evidence of the NEC

7Mr. Stewart provided evidence on behalf of NEC. Mr. Stewart provided a summary of his curriculum vitae and experience, and sought qualification as an expert witness in the area of land use planning. The Hearing Officers qualified Mr. Stewart to provide opinion evidence as a land use planner.

8Mr. Stewart reviewed his report to the NEC, dated October 10, 2017, regarding the Application. He stated that the Property is located within the ERA land use designation in the NEP, and confirmed that “single dwellings” are permitted uses in the ERA under Part 1.5.3 of the NEP, subject to relevant development criteria.

9Noting that the proposed development would be a second single dwelling, Mr. Stewart referred to Part 2.2.7 of the NEP, which states that only one single dwelling is permitted on each existing lot of record in the Escarpment Natural Area (“ENA”), Escarpment Protection Area (“EPA”) and ERA designations. He noted that Part 2.2.7 created one exception, applicable to heritage properties, and stated that this exception did not apply to the Appellant’s Application, as the dwelling on the Property has no heritage attributes.

10Mr. Stewart then referred to Part 2.2.11 of the NEP, noting that 2017 amendments to the NEP included new development criteria, at Part 2.2.11, applicable to permit some secondary dwelling units in the ERA. He referred to Part 2.2.11 c), which states: “the secondary dwelling unit shall be contained entirely within a single dwelling or in an addition to a single dwelling and shall not be permitted in a detached accessory facility”. He also referred to Part 2.2.11 d) which states: “the floor area of a secondary dwelling unit shall be subordinate in size to the single dwelling”.

11It was Mr. Stewart’s opinion that the proposed development would not meet the secondary dwelling unit criteria because it would be detached, and because the area of the proposed secondary unit of 316 square metres (“sq m”) would be greater than that of the original dwelling, which is 223 sq m. Mr. Stewart observed that a secondary dwelling unit could be approved by the NEC if it conformed to the Part 2.2.11 criteria.

12Mr. Stewart also noted Part 2.2.1 of the NEP, which provides that the Escarpment environment “shall be protected, restored and where possible enhanced for the long term, having regard to single, multiple or successive development that have occurred or are likely to occur.” He also reviewed the purpose and objectives of the NEP. It was his opinion that the proposed development, if approved, could be considered as a precedent to justify additional detached second dwellings on ENA, EPA and ERA lots. He stated that this, in turn, could negatively affect the open landscape character and the natural and physical environment of the Escarpment.

13Finally, Mr. Stewart reviewed the PPS, noting that it does support a mix of uses, including second units, at Part 1.1.1 b), but also provides at Part 1.1.3.1 that settlement areas shall be the focus of growth and development. He went on to refer to Part 4.12 of the PPS, which states that Provincial plans (such as the NEP) take precedence over the PPS to the extent of any conflict. Further, he noted that the PPS promotes growth in settlement areas or rural settlement areas, and neither designation applies to the Property. For these reasons, he concluded that the PPS did not support the proposed development.

14Mr. Stewart’s report to the NEC recommended refusal of the proposed development because of the non-conformity with Parts 2.2.7 and 2.2.11 of the NEP, as well as the lack of support by the Town and the Region. The NEC accepted this recommendation and refused the Application.

Evidence of the Appellant

15Clarence Riepma provided evidence on behalf of the Appellant. Mr. Riepma provided a summary of his curriculum vitae and experience and sought qualification as an expert witness in the area of land use planning. The Hearing Officers qualified Mr. Riepma to provide opinion evidence as a land use planner.

16Mr. Riepma reviewed the evidence set out in his book of documents, including his witness statement, and a series of photographs showing the existing house on the Property and its surroundings. He stated that the Appellant’s son owns the Property and lives there, and the Appellant wishes to live on the Property as well, but would prefer not to live in same building as his son’s family. Mr. Riepma reviewed factors that he considered constrained development around the existing dwelling, including its proximity to a hilly slope on one side, a septic tank and tile bed on the other side, and a walk-out from the basement. He acknowledged that an addition could be made to the existing dwelling, but stated that it would not be practical or desirable to do so. Mr. Riepma also stated that the proposed development would not require any tree removal, and would be well screened from the road and existing properties by existing vegetation.

17Mr. Riepma conceded that the proposed development would not conform with Parts 2.2.11 c) and d) of the NEP, because the proposed development would not be contained within a single dwelling but would be a secondary dwelling unit that would be detached and would exceed the floor size of the existing dwelling. However, he referred to Part 2.1 of the NEP (the introduction to the NEP Part 2 development criteria) which states: “These criteria deal with development in a variety of situations; therefore, all of the criteria will not apply to every development”. In Mr. Riepma’s opinion, the use of a development permit system, as with the NEP, rather than zoning, reflected a more flexible approach to land use planning, which he said is more suited to the variable environment that occurs within the NEP area. It was Mr. Riepma’s view that the language in Part 2.1 of the NEP would allow the Hearing Officers to override the proposed development’s non-conformity with Part 2.2.11. He stated that even if the proposed development did not fulfill all of the tests in the NEP, it would meet the spirit of the plan.

18Mr. Riepma expressed the opinion that there “would have been no issue” had the Appellant requested the demolition of the existing home and replaced it with a 6,000 square foot (“sq ft”) to 10,000 sq ft dwelling containing a 4,000 sq ft secondary dwelling within it. He speculated that such a building might have a much greater environmental impact than that of the proposed development. He also noted the presence of large homes adjacent to the Property.

19Mr. Riepma noted that both the Town and the Region Official Plans require conformity with the NEP, and support its policies. Regarding the PPS, he acknowledged that it focuses growth and development on settlement areas, but stated that the area where the Property is functions as a settlement area.

20Mr. Riepma noted that the Hearing Officers could add conditions to require screening plantings along the property to address Mr. Wipplinger’s concerns about privacy.

21It was Mr. Riepma’s opinion that the proposed development conformed to the “general intent” of the NEP. Further, it was his opinion that the proposed development would have no negative impacts on the environment or scenic views in the Escarpment area, and would be “sympathetic to the existing natural environment”.

Evidence of the Participants

Fred Wipplinger

22Mr. Wipplinger lives next door to the Property, and shares a 520 foot property line. He stated that he chose to live in this neighbourhood because of its privacy and open green space, and drew comfort from land use constraints which he understood to limit lots to single dwellings.

23Mr. Wipplinger objects to the imposition on his privacy that the proposed development would create, and filed photographs to show how close the proposed development would be to his home. He also expressed concern about the precedent value of this decision, and the impact on the Escarpment area.

Donna Acton

24Ms. Acton testified on behalf of herself and Mr. Bartlett, Mr. Carroll, Ms. Carroll, Ms. Barlow and Mr. Barlow. The Hearing Officers appreciated the effort of these six participants to co-ordinate their evidence.

25Ms. Acton testified that all of these neighbours moved to the neighbourhood because of the large, quiet, well-spaced lots, and that all believed that the policies of the NEP would protect these amenities from the impacts of further development.

26Ms. Acton stated that these neighbours were of the view that the proposed development is not consistent with Parts 2.2.7 and 2.2.11 of the NEP because the Property is not a heritage site, and the proposed development would not be a permitted secondary dwelling unit as it would be detached and larger in floor area that the first dwelling.

27Ms. Acton took issue with the Appellant’s suggestion that the permitted secondary dwelling unit constraints were neither practical nor desirable. From the perspective of these neighbours, the proposed development was not desirable.

28Ms. Acton also questioned the suggestion that the proposed development would have “no negative impact on the environment”. She stated that no formal studies or analysis had been presented to justify that conclusion.

29Ultimately, Ms. Acton’s group was concerned about the precedent that approval of the proposed development would set, and how this could affect the “characteristics and charm that drew us all to locate here”.

Carlo Dimitrio

30Mr. Dimitrio lives two houses away from the Property. Similar to the concerns of his other neighbours, his concerns relate to the precedent value of this decision, and its impact on noise, safety and the natural environment on the Escarpment.

Analysis and Findings

31The Hearing Officers are sympathetic to the Appellant’s position, given the constraints around the current dwelling, and his desire to construct a second, detached dwelling on the same lot so that he can live close to his son’s family. Nonetheless, the applicable provisions of the NEP must be met.

32The Property is in the ERA, within which single dwellings are a permitted use under Part 1.5.3 of the NEP. Part 2.2.7 of the NEP requires that only one single dwelling be permitted on a lot. The NEP defines a “single dwelling” as a separate building containing not more than one dwelling unit, and defines a “dwelling unit” as one or more habitable rooms with a private entrance and designed for the use of one household in which sanitary and kitchen facilities are provided for the exclusive use of such household. The proposed development would be a second dwelling on the lot, and would not be permitted. Part 2.2.7 exempts heritage buildings from this restriction. Both Mr. Stewart and Mr. Riepma agreed that the heritage exception does not apply here; however, the existence of the heritage exception shows that the Province has considered the specific situations in which an exemption can be considered.

33Recent amendments to the NEP intended to facilitate the creation of secondary dwelling units provide another exception to the one dwelling per lot policy. However, there are conditions that are set out in Part 2.2.11. In short, the secondary dwelling unit may not be detached, and must have a floor area less than that of the original building. The proposed development meets neither of these conditions.

34Mr. Riepma referred to the introductory language in the NEP, Part 2.1 which states that “…all of the criteria will not apply to every development”. It was his opinion that this language provides the Hearing Officers with the authority, in effect, to override non-compliance with the Part 2.2.11 criteria.

35Part 2.1 of the NEP also states that the general criteria are to be applied to all proposed development, in addition to any specific development criteria that may apply to a particular class of development. All applicable development criteria do apply to a relevant proposal. One can imagine many situations where all of the criteria in the NEP do not apply to every development. For example, agricultural or mineral aggregate resources policies will likely be immaterial to estate residential land use applications. In this situation, however, very specific and explicit policies have been put in place to govern secondary dwelling units. They are material and must be applied to this proposed development. It is not open to the Hearing Officers to simply ignore them. The introductory language of Part 2.1 is not an invitation to ignore relevant development criteria; rather it is acknowledgement that not all criteria are necessarily relevant to every proposal. Under the NEPDA (s. 25(4)), decisions on development permits must be made in accordance with the NEP. A decision that ignores applicable provisions of the NEP would not be in accord with the NEP or in keeping with the legislation.

36The Appellant’s evidence was that the proposed development will have no adverse environmental impact; however, as Ms. Acton noted, no detailed studies or rationale have been provided in support of that assurance. Mr. Riepma was not able to direct the Hearing Officers to any other language in the NEP in support of his interpretation as to compliance with the “general intent” of NEP, other than the general language discussed in the paragraph above.

37One adverse impact that was of concern to the NEC, and to all of the resident participants, was the precedential value of a decision such as that requested. If the development criteria are set aside to accommodate the convenience and preferences of a lot owner (as compelling as they may be), it is predictable that many lot owners will seek the same accommodation. This would completely undermine the one dwelling per lot rule and the very specific exceptions to that rule, and would, in the view of the Hearing Officers, be inconsistent with the explicit objectives and development criteria of the NEP.

38Mr. Riepma suggested that the general objectives of the PPS favour the development of secondary units. However, the PPS is clear that Provincial plans, in this case the NEP, take precedence over the PPS in the event of conflict. The NEP makes the same statement. The PPS does not help the Appellant.

39The Hearing Officers note that development of secondary units is possible, and that NEC staff have discussed with the Appellant the possibility of an application which does conform to the applicable NEP criteria. There may be an opportunity for the Appellant to further explore this possibility in order to achieve his desired objectives.

40Therefore, the Hearing Officers find that Application for the proposed development does not comply with Part 2.2.7 of the NEP. The exemption set out in Part 2.2.7 does not apply as this is not a heritage property. Although secondary dwelling units are permitted under conditions set out in Part 2.2.11, these conditions are not met here, as the proposal is for a detached single dwelling which would be larger than the first dwelling. Nothing in the policies of NEP or of the PPS justifies the exception proposed by the Appellant.

DECISION

41The NEC’s decision of October 19, 2017 is confirmed pursuant to s. 25(12) of the NEPDA. The appeal is dismissed.

NEC Decision Confirmed

Appeal Dismissed

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

HEARING OFFICER

“Graham Rempe”

GRAHAM REMPE

HEARING OFFICER

Appendix 1 – Relevant Legislation, Niagara Escarpment Plan and Provincial Policy Statement Provisions

If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.

Niagara Escarpment Hearing Office A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248