Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
November 09, 2021
CASE NO(S).:
PL200345
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Joe and Amanda Bozzelli
Subject:
Minor Variance
Variance from By-law No.:
2006-50
Property Address/Description:
15 Rowley Drive
Municipality:
Town of Caledon
Municipal File No.:
A-039-19
OLT Case No.:
PL200345
OLT File No.:
PL200345
OLT Case Name:
Bozzelli v. Caledon (Twn.)
Heard:
October 26, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Joe Bozzelli
Self-represented
Town of Caledon
Alana Vandervoort
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON OCTOBER 26, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Joe and Amanda Bozelli (“Applicants”) constructed an accessory shed measuring 6.1 by 6.1 metres (“m”) and a detached 9.1 by 34.1 m garage on their property, known municipally as 15 Rowley Drive (“subject property”).
2The subject property is located on the south side of Rowley Drive, east of Mount Hope Road in the Palgrave Estates Residential Community, which is designated within the Oak Ridges Moraine Conservation Plan 2017 (“Conservation Plan”). It has an area of approximately 2.6 hectares (“ha”), with roughly 115 m of frontage along Rowley Drive. To the rear of the property is a significant woodland, which is part of a protected Environmental Zone and subject to specific Conservation Plan and Official Plan (“OP”) policies limiting development thereon. To the north, south and west of the subject property are single detached estate dwellings with similar features and to the east are Agricultural Lands.
3There is currently a single detached residential dwelling on the subject property with the storage shed located to the east of the dwelling and the detached garage situated within the woodland area, approximately 50 m south of the dwelling. The two accessory structures are the focus of the matter before the Tribunal.
4As the accessory structures were constructed on an area of the property where development is not permitted, the Applicants requested a minor variance from Zoning By-law No. 2006-50 (“ZBL”) in order to retain the structures in their current locations. The Town of Caledon (“Town”) Committee of Adjustment refused the application and that decision was appealed to the Tribunal, pursuant to s. 45(12) of the Planning Act1 ("Act").
5As a result of ongoing discussions between the parties, an agreement was reached to settle the appeal, which received the support of the Town Council in a resolution adopted on April 27, 2021. The parties requested the Tribunal schedule a one-day settlement hearing, during which they presented executed Minutes of Settlement (“MOS” marked Exhibit 1) and requested an Order approving a revised request for a minor variance, subject to a number of conditions (Exhibit 1, Schedule C). No other parties requested standing at the hearing.
PLANNING EVIDENCE
6In support of the settlement, the Tribunal heard the testimony of Martin Quarcoopome and Rob Hughes, both of whom are Registered Professional Planners and full members of the Canadian Institute of Planners and the Ontario Professional Planners Institute, duly qualified to provide expert opinion evidence in the field of land use planning.
7A detailed contextual and land use planning rationale to support the settlement and a review of the proposed minor variance against the relevant legislative framework was provided by Mr. Quarcoopome, whose Affidavit is Exhibit 2 to this proceeding. Mr. Hughes, Manager of Planning Services for the Town, provided a comprehensive review of the recommended conditions, which both planners testified are a vital component of the settlement and the Town’s support of same.
8Mr. Quarcoopome provided a brief overview of the history of the matter before the Tribunal, which began with an initial application for a minor variance seeking relief from the ZBL to increase the structural envelope on the subject property from 0.28 ha to 0.36 ha, so as to permit the retention of the two accessory structures in their current locations. As a result of concerns held by the Town and the Nottawasaga Valley Conservation Authority (“NVCA”), largely in relation to the garage structure currently located in the woodland area, that application was refused.
9As a result of further discussions with the Town and the NVCA, the Applicant submitted a revised proposal, which contemplates:
an increase in the structural envelope from 0.28 to 0.34 ha;
storage shed to be maintained in its current location; and
garage to be relocated from the interior of the woodland area to the edge of the current structural envelope, with a small portion of the building protruding outside the current structural envelope.
10Although alternatives were explored in an effort to relocate the garage completely within the existing structural envelope, this was not possible due to grading and septic bed constraints. In the opinion of Mr. Quarcoopome, the only way to allow the retention of the structure while avoiding these constraints is to relocate the garage in accordance with the revised proposal.
11Mr. Hughes provided a detailed overview of the proposed conditions (Exhibit 1, Schedule C). He noted the primary concern with the request to increase the structural envelope on the property involved the removal of trees and the need to protect the environment and natural heritage features of the area. Natural heritage evaluations were undertaken and, with input from the parties as well as the NVCA, a list of conditions was developed incorporating mitigation measures, such as a requirement for site plan approval and a site-specific tree compensation plan.
12Mr. Hughes testified the list of conditions adequately address all concerns of the Town and the NVCA. Both planners opined that the conditions are reasonable and appropriate and will ensure the proposed development does not result in adverse impacts on the environment or natural heritage features of the area.
13Overall, Mr. Quarcoopome opined that the revised variance: meets the four tests under s. 45 (1) of the Act; has appropriate regard for matters of Provincial interest in s. 2 of the Act; is consistent with the Provincial Policy Statement (“PPS”); conforms to the Region of Peel Official Plan (“ROP”), the Conservation Plan and the Town’s Official Plan (“TOP”) and, in general, constitutes good planning.
14Although the requested variance is local in nature, Mr. Quarcoopome referred to the PPS and matters of Provincial interest, noting it is consistent with policies which speak to the long-term protection of natural heritage features and the environment. He opined that, through a refinement of the boundaries in relation to the environmentally protected area on the subject property (permitted under policies within the TOP, discussed in further detail below) and the list of recommended conditions agreed to by the parties, the Applicants will be able to use and enjoy their property in the manner they would like, while limiting the impacts upon the natural environment and in fact, will effect some measure of improvement in the natural heritage area through the planting of additional trees.
MINOR VARIANCE TESTS
Maintain the General Intent and Purpose of the Official Plan
15Mr. Quarcoopome opined that the requested variance maintains the general intent and purpose of both the ROP and TOP. The subject property is identified in the ROP as Estate Residential and is subject to policies reflective of those within the Conservation Plan prohibiting development in the woodland area. It is identified in the TOP as Special Policy Area 3 – structure enveloped areas where residential uses are permitted and Special Policy Area 4, which is within the Conservation Plan Natural Linkage designation area – natural areas where residential development is not permitted. The subject property is also designated EZ1 (Environmental Zone 1), representing sensitive natural heritage areas within the Town.
16Although policies within the ROP, TOP and Conservation Plan similarly prohibit the development of structures on the woodland located to the rear of the subject property, s. 7.1.9.2 of the TOP allows for minor refinements to the boundaries of the environmentally protected area, subject to a natural heritage evaluation. In this instance, evaluations were completed by Tarandus Associates Limited (Exhibit 2, Appendix 3) and Dillon Consulting Limited (Exhibit 2, Appendix 4).
17Essentially, although the area is described as a significant woodland, both evaluations concluded the woodland has not been well-maintained, such that the trees therein are crowding each other and further, that the woodland has little diversity/ecological significance, providing poor quality habitat for wildlife. As a number of trees will be removed to accommodate the proposed development, the evaluations recommended mitigation measures including reforestation.
18On the basis of these evaluations and Mr. Quarcoopome’s reading of the Conservation Plan and ROP/TOP policies, he opined the proposed increase in structural envelope and the construction of the garage in the location proposed will not result in any negative environmental effects, in accordance with the general intent and purpose of both the ROP and TOP.
Maintain the General Intent and Purpose of the Zoning By-law
19The subject property is zoned Residential Estate-Exception 208 (RE-208). This Zone permits residential estate sized lots and restricts development of structures to each lot’s structural envelope. In this case, the subject property’s structural envelope is currently 0.28 ha.
20Mr. Quarcoopome testified the general intent and purpose of the ZBL is to mitigate impacts of development on the environment and natural heritage features in the area. He again referred to the conclusions in the natural heritage evaluations and opined increasing the structural envelope to 0.34 ha and relocating the garage as proposed (with the majority of the structure situated outside the woodland area), along with the recommended conditions, maintains the general intent and purpose of the ZBL.
Minor in Nature
21Mr. Quarcoopome opined the variance is minor in nature. He drew the Tribunal’s attention to s. 7.1.9.3 of the TOP, which sets out policies on structural envelopes, including the size thereof, “…Structure envelopes will generally be sized in the range of 0.3 hectares (0.74 acres) to 0.5 hectares (1.24 acres)”.
22He testified that the subject property, despite being larger than most of the properties in the area, has a structure envelope which is slightly smaller than the minimum area set out in the TOP. He opined that the increase to 0.34 ha represents a minor change and keeps the structural envelope of the property at the lower end of the range specified in the TOP.
23Mr. Quarcoopome acknowledged that the evaluation of whether a requested variance is minor is not a strictly numeric exercise and involves a broader consideration of the impacts on neighbouring properties and the area in general. In his view, the proposed relocation of the garage with the adoption of the mitigation measures developed with the NVCA will ensure that there are no negative impacts to neighbouring properties or the environment.
Desirable for Appropriate Development or Use of the Land, Building or Structure
24Mr. Quarcoopome noted that, although the larger concern centred around the garage situated in the woodland, the whole of the proposed development (shed and garage) is, in his professional opinion, appropriate and desirable. The proposal allows for the retention of both structures on the property and the relocation of the garage along with the mitigation measures specified in the agreed upon list of conditions will ultimately leave the property in a better condition from an environmental and natural heritage perspective.
FINDINGS AND DISPOSITION
25The variance presently before the Tribunal differs slightly from the initial application, which contemplated an increase in the structural envelope from 0.28 ha to 0.36 ha, whereas the Applicants now request an increase to 0.34 ha. The Tribunal finds the change, being minor in nature, requires no further notice pursuant to s. 45 (18.1.1) of the Act.
26The Tribunal accepts the uncontested expert planning evidence and opinions of both Messrs. Quarcoopome and Hughes and finds the proposed variance, subject to the list of recommended conditions as agreed upon by the parties, meets all the relevant legislative tests as discussed above. The variance and conditions will allow the Applicants to retain the accessory structures on their property without adverse impacts to neighbouring properties, the natural heritage features of the area and the environment, in general.
ORDER
27The Tribunal having been asked to consider an application which has been amended from the original application, has determined that no further notice is required in accordance with s. 45(18.1.1) of the Planning Act.
28THE TRIBUNAL ORDERS that the appeal is allowed in part. The variance to Zoning By-law No. 2006-50 for the Town of Caledon to permit an increase in the structural envelope on the subject property from 0.28 to 0.34 hectares is authorized in accordance with the shape and size of the structural envelope illustrated in Attachment 1, subject to the conditions set out in Attachment 2 to this Order.
“S. Braun”
s. braun
Member
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
PL200345 – Attachment 1
PL200345 – Attachment 2
Minor Variance Conditions
That the Secretary Treasurer receive confirmation from Planning Review Services and the Nottawasaga Valley Conservation Authority that a satisfactory Oak Ridges Moraine Site Plan application has been received which addresses amongst other matters an appropriate and site specific tree compensation plan, applicable mitigation measures of proposed development, and conformity with all applicable zoning requirements;
That the Secretary Treasurer receive confirmation from Engineering and Legal Services that a satisfactory reference plan has been deposited identifying the revised structure envelope/lands to be removed from the current easements and lands being added to reforestation easement (if necessary);
That the Secretary-Treasurer receive confirmation from Legal Services indicating that:
a. The Transfer Easement registered as Instrument No. LT1809010 has been partially released and abandoned to the satisfaction of Legal Services;
b. If applicable, a new Transfer Easement has been registered contemplating the new reforestation easement to the satisfaction of Legal Services.
c. The Transfer Easement registered as Instrument No. LT1809006 has been partially released and abandoned. These documents shall be prepared by Legal Services and all costs associated with the preparation and registration of the same shall be at the expense of the applicant in accordance with the Town's Fees By-Law.
The documents listed in 3(a) and (b) shall be prepared by Legal Services and all costs associated with the preparation and registration of the same shall be at the expense of the applicant in accordance with the Town's Fees By-Law.
- That the Secretary Treasurer receive confirmation that within 12 months of approval and to the satisfaction of the Chief Building Official, the accessory building in question has been demolished and removed from the current location in accordance with all applicable requirements of the Building and Municipal Law Department.