Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: May 17, 2021
CASE NO.: 20-045
PROCEEDING COMMENCED UNDER subsections 25(5.1) and 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: See Appendix 1 - Appellant List
Applicant: Frank Medeiros
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to construct a one and a half storey accessory building on a lot with an existing single-dwelling
Reference No.: S/R/2020-2021/307
Property Address/Description: Part Lot 37, Concession 12, 795385 Collingwood-Clearview Townline
Municipality: Township of Clearview
Upper Tier: County of Simcoe
NEHO Case No.: 20-045
NEHO Case Name: Close v. Ontario (Niagara Escarpment Commission)
APPEARANCES:
Parties Counsel+/Representative
Frank Medeiros Mina Youssef+
David Close Self-represented
Steve Sam Cohen Self-represented
Mary Ruby Self-represented
Niagara Escarpment Commission Judy Rhodes-Munk and Natalia Gerrard
HEARD: April 28, 2021 by telephone conference call
ADJUDICATOR(S): Laurie Bruce, Hearing Officer
REPORT
1The matter before the Niagara Escarpment Hearing Office (“NEHO”) is the appeal of a Development Permit issued to Frank Medeiros for the construction of a garage on his 4.26 hectare (“ha”) property. The Niagara Escarpment Commission (“Commission”) conditionally approved his Development Permit application.
2The subject property is designated Escarpment Protection Area and Escarpment Rural Area in the Niagara Escarpment Plan.
3Five appeals of the Development Permit were received from the following Appellants:
a. David Close
b. Susan de Souza-Close
c. Steve Sam Cohen
d. Wood Hill
e. Mary Ruby
4The Applicant’s original application was for a one and a half storey four-car garage with an elevated storage area. Subsequent to the conditional approval by the Commission, Mr. Medeiros and his consultant, Babek Naghash, re-designed and re-located the proposed garage. The re-designed garage includes recreation facilities including toilet, sink and shower fixtures that will require water and sewage servicing.
5Three Pre-hearing Conferences (“PHCs”) were held by telephone conference call (“TCC”) during which the parties Mr. Close, Mr. Cohen and Ms. Ruby discussed issues of concern. Following the third PHC, the Appellants that had attended the PHCs agreed to withdraw their appeals.
6The issues before the NEHO were as follows:
a. The visual impact of the garage relative to the main house
b. The use of vegetation to provide a visual screen of the garage
c. The use of the garage as a dwelling
d. The need for additional septic capacity
Visual Considerations
7The parties expressed concerns about the height of the garage relative to the house and the separation between the buildings so that the proposed development would not create a wall of buildings. In response, Mr. Naghash prepared a drawing that was provided to the parties that depicted the relationship between the garage and the dwelling. The parties were satisfied that the two buildings would have an appropriate relationship and would not create a wall of buildings.
8Mr. Medeiros committed to vegetative plantings on the property in the vicinity of the new garage. The Appellants wished to see a requirement added to the Conditions of Approval for vegetative plantings to screen the garage. Judy Rhodes-Munk, planner with the Commission, provided draft wording which would require a landscape plan to be included with the site plan. The parties were satisfied that this condition will also mitigate any visual impact of the new development.
Restrictions on the Use of the Garage
9The Commission stated that a second dwelling is not permitted on this property and that it would be appropriate to require a restriction registered on title stating that the garage cannot be used as a second dwelling. Ms. Rhodes-Munk provided the NEHO and the parties with wording that the Commission typically uses when including this condition. The parties were satisfied that this condition would appropriately restrict the use of the garage.
Need for Additional Septic Capacity
10With the modification of the garage, there is a wastewater management requirement. Mr. Medeiros retained the services of a septic specialist who prepared plans for a new septic system which would manage the wastewater solely from the garage. Ms. Rhodes-Munk had no concerns with the location of the septic tank and bed.
11The parties agreed that changes to the development permit conditions would allow Mr. Close, Mr. Cohen and Ms. Ruby to withdraw their appeals.
Relevant Legislation and Rules
12The relevant legislation and rules of the Environmental Review Tribunal’s Rules of Practice and Practice Directions (“Rules”), which apply to appeals under the Niagara Escarpment Planning and Development Act (“NEPDA”) in this situation, are:
25(12.1) The decision of the delegate shall be deemed to be confirmed if,
(a) the decision of the delegate was a decision to issue a development permit;
(b) the parties who appeared at the hearing have agreed on all the terms and conditions that should be included in the development permit and all of these terms and conditions are set out in the report of the officer under subsection (11); an
(c) the opinion of the officer expressed in his or her report under subsection (11) is that, if the decision of the delegate included the terms and conditions referred to in clause (b), the decision would be correct and should not be changed.
Same
(12.2) If subsection (12.1) applies, the decision of the delegate shall be deemed to be a decision to issue the development permit with the terms and conditions referred to in clause (12.1) (b).
Rules
- Where the Parties agree to all the terms and conditions that should be included in a revised development permit, the Tribunal may confirm the decision of the Niagara Escarpment Commission pursuant to section 25(12.1) of the Niagara Escarpment Planning and Development Act and shall include the terms and conditions in its report.
13All parties agreed that modified conditions addressing the restriction on the use of the garage as a dwelling and a requirement to include a landscape plan would address their outstanding concerns. The NEHO found that with these additional conditions, the decision of the Commission would be correct and should not be changed.
Evidence and Findings
14The Hearing Officer heard submissions of the parties. Ms. Rhodes-Munk’s opinion is that the modified garage and the new septic would continue to be appropriate, subject to the conditions listed in the conditional approval.
15The proposed garage is a permitted use and satisfies the development criteria set out in Parts 2.2 (General), Part 2.7 (Natural Heritage), 2.8 (Agriculture) and 2.13 (Scenic Resources). The dwelling remains in conformity with the Local and Regional Official Plans and is consistent with the Provincial Policy Statement. Therefore, the Hearing Officer accepts that if the Conditional Approval is amended as set out in Attachment 2 the decision would be correct and should not be changed.
DECISION
16The NEC's decision to conditionally approve the Applicant’s development permit application S/R/2020-2021/307, with the addition of Condition 9 and the modification of Condition 11 as set out in Appendix 2, is confirmed pursuant to s. 25(12.1) of the Niagara Escarpment Planning and Development Act.
NEC Decision Confirmed with Revised Condition
Appeal Dismissed
“Laurie Bruce”
LAURIE BRUCE
HEARING OFFICER
If there is an attachment referred to in this document,
please visit www.olt.gov.on.ca to view the attachment in PDF format.
Niagara Escarpment Hearing Office
Environmental Review Tribunal
A constituent tribunal of Ontario Land Tribunals
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
APPENDIX 1
Appellant List
Appellant Name
File No.
David Close
20-045
Susan de Souza-Close
20-046
Steve Sam Cohen
20-047
Wood Hill
20-048
Mary Ruby
20-049