Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 24, 2021
CASE NO(S).: OLT-21-001430
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Isabel Holmes (File No. 001568)
Appellant: Jeff Holmes (File No. 001569)
Applicants: Kevin and Donna Walter
Respondent: Niagara Escarpment Commission
Subject of appeal: The Approval of a Development Permit Application, with conditions, to construct a single dwelling including attached garage and porch, install a private sewage disposal system, a driveway, and temporary construction access on an existing vacant lot
Reference No.: M/R/2020-2021/672
Property Address/Description: 706329 County Road 21
Municipality: Township of Mulmur
Upper Tier: County of Dufferin
OLT Case No.: OLT-21-001430
OLT Case Name: Holmes v. Ontario (Niagara Escarpment Commission)
Heard: December 2, 2021 by telephone conference call
APPEARANCES:
| Parties | Representative |
|---|---|
| Niagara Escarpment Commission ("NEC") | Jenna Skinner |
| Kevin and Donna Walter ("Applicants") | Self-represented |
| Isabel and Jeff Holmes ("Appellants") | Self-represented |
| Jane Pepino | Self-represented |
DECISION DELIVERED BY G.C.P. BISHOP AND WARREN MORRIS AND ORDER OF THE TRIBUNAL
1This matter before the Ontario Land Tribunal (“OLT” or “Tribunal”) is the first Case Management Conference (“CMC”) to determine parties to the appeal, and to discuss the issues and the scheduling of the appeal.
2The matter before the Tribunal is the appeal of a Development Permit issued to construct a 1½ storey (plus walk-out), ± 423 m² (4,550 ft²) single dwelling including attached garage and porch, with a height-to-peak of ± 11.5 m (37.5 ft), install a private sewage disposal system, a driveway, and a temporary construction access, on a 0.72 hectares (1.79 acres) existing vacant lot (“subject property”). The NEC conditionally approved this Development Permit Application.
3The Appellants’ property is on the south side of County Road 21, directly opposite the subject property. The Appellants are concerned about the discrepancy in building size and how this also compares to past development permit applications. It is the Appellants’ position that the Application does not maintain and enhance the open landscape character of the Niagara Escarpment and the proposal will create a visual impact onto County Road 21.
4The Tribunal received one request for party status from Jane Pepino, who lives on the south side of County Road 21, to the west of the subject property. Ms. Pepino’s property is directly west of the Appellants’ property. Ms. Pepino is within the 120 metres circulation area and has a direct interest in the outcome of this proposed development. Although the Applicants did question why Ms. Pepino did not formally object to Notice of Decision, issued by the NEC, the Tribunal sees no prejudice to any of the parties at this early stage in the process and granted Ms. Pepino party status.
5Ms. Pepino’s main issue is visual impact from the public realm relating to setbacks from the County Road. The proposed location of the septic system protrudes toward the County Road potentially limiting the amount of coverage or replanting in this area to buffer the view of the proposed dwelling. Another issue is the proposed height of the building and this is also an issue of the Appellants. Jenna Skinner was in attendance, on behalf of NEC, did give an explanation why the differences in height. The new proposal has a walk-out basement and the height of the building is measured from its lowest point, whereas the 2017 proposal did not have a walk-out basement therefore, the height of the buildings from 2017 to 2021 were, in her estimation, within approximately two feet difference in height.
6The subject property is designated Escarpment Protection Area (“EPA”) in the Niagara Escarpment Plan (“NEP”) 2017 and one of the permitted uses is a Single Dwelling. The subject property is also designated EPA in both the County of Dufferin Official Plan and the Township of Mulmur Official Plan.
7Ms. Skinner indicated that the application is at the conditional approval stage. This is certainly evident by the number of conditions, totalling 13, that must be satisfied throughout the process. Ms. Skinner indicated that the NEC’s landscape architect provided comments to staff for a previous application and was engaged again on the current application to ensure there were no concerns over the increase in dwelling size. Ms. Skinner also indicated that no visual impact assessment was required and no hydrology or natural heritage features of concern.
8No one else attended the CMC.
9This property has a long history, with many Development Permit Applications being filed over the past 20 years or so. Prior to this current Application, there was a 2017 submission that was conditionally approved in June of 2018, but the permit lapsed, and no construction occurred. It was noted that the same landscape architect worked on the current application and the previous submission from 2017.
10On consent, the parties agreed to hold a meeting on Friday, February 11, 2022 to discuss the issues and get a better understanding of the proposal. The Applicants will be responsible for the organization of this meeting and it will be by Zoom. The Tribunal finds this to be beneficial as it may reduce the issues or bring this matter closer to a settlement. In preparation of that meeting, the Tribunal directed the NEC to supply to the parties, all of the records that were available to the NEC at the time of this decision and also the previous, and most recent approved Notice of Decision, with conditions, from the 2017 Application. These documents will assist the parties with the discussion around the previous, uncontested decision and the current application in front of the Tribunal.
11Although it is not up to the Tribunal to direct anyone and how they wish to move forward to present their case, in this instance, the Tribunal did suggest to the Applicants, that the more information they are able to supply the NEC and the Appellants, prior to their scheduled meeting in February, it may be beneficial for everyone to understand what is being proposed. One of the suggestions by the Appellants was a 3D rendering looking from the County Road and directed towards the proposed dwelling. The Tribunal also directed that photographs in this location and photographs taken from definable areas where the walls of the building would be constructed, both in a southerly direction, toward the County Road and easterly toward the steep slopes. This may give all parties a better idea of the tree cover that is existing and will remain if construction takes place.
12There was also some confusion over the reading of the site plan itself. Prior to the February meeting, the Tribunal directed the Applicants to delineate the property boundaries, in heavy outline, and also create a building envelope in accordance with the standards for the existing zoning from the comprehensive By-law of the Township of Mulmur. It would also assist in showing setbacks from the proposed building to both the northerly and southerly lot lines. This will greatly enhance the ability to understand the information presented on the current set of architectural drawings.
13The Tribunal directs the NEC and the Applicants to supply the information stated above, in paragraphs 10, 11 and 12 to all the parties by no later than Friday, February 4, 2022. This includes the documentation from the NEC for this Application and the previously approved application in 2017. In the Applicants’ case, the Tribunal directed the amendments to the site plan and the photographs, but not the 3D rendering. There is a concern whether the Applicants have enough time to prepare the 3D rendering but will work diligently to attempt to supply it, when available.
14The Tribunal also suggests that the Applicants’ architect would be of great assistance in this February meeting.
15The Tribunal inquired of the parties, how many witnesses they anticipated for a hearing on the merits. Ms. Skinner indicated that she would supply expert planning evidence; Mr. Walter indicated that he may call his landscape architect; and Mr. Holmes indicated that they may call a land use planner and possibly an engineer. Ms. Pepino reserved her comments until such time the issues may become more refined.
16From all the conversations gathered at this CMC, the Tribunal set aside two days of hearing time to commence on Wednesday, April 20, 2022 at 10 a.m.:
https://global.gotomeeting.com/join/909787981
Access Code: 909-787-981
17Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.
18Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
19Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The Access Code is as indicated above.
20Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
21In preparation of this hearing, if necessary, all documentation information and witness statements that will be relied upon at the hearing will be supplied to the Tribunal and other parties no later than Friday, April 8, 2022. There was a suggestion from Ms. Pepino that a joint document book could be assembled to assist the Tribunal in this matter. The Tribunal directs Ms. Pepino to organize and assist the parties in the organization of a single document book for the Presiding Hearing Officer. The Tribunal does not see this case as having the potential of an overwhelming amount of documentation and if anything arises from this direction, the Tribunal may be spoken to through the Case Coordinator.
22The Tribunal also set aside one day, commencing Tuesday, March 1, 2022, at 10 a.m. for the mediation of this matter. The Tribunal also notes that this can be converted to a settlement hearing if the meeting of the parties in February has been fruitful. Prior to this meeting the Tribunal directs each party to supply a briefing note, stating their positions, that will be kept confidential with the Presiding Hearing Officer This briefing note shall be supplied to the Case Coordinator no later than Tuesday, February 22, 2022. The mediation session will be using the Teams platform and all the parties will be contacted by the Case Coordinator by email, closer to the event time, with their sign in information.
ORDER
23The exchange of documents for the Parties’ Zoom meeting on Friday, February 11, 2022 is due no later than Friday, February 4, 2022.
24There will be a one-day mediation session to commence on Tuesday, March 1, 2022 at 10 a.m., on the Teams platform and the coordinates to enter this meeting will be distributed by the Tribunal’s Case Coordinator a week before this event. A briefing note from each party is due to the Case Coordinator no later than Tuesday, February 22, 2022. This event can be converted to a settlement hearing upon notification to the Tribunal’s Case Coordinator by no later than Tuesday, February 22, 2022.
25A two-day hearing is scheduled to commence on Wednesday, April 20, 2022 at 10 a.m.
26All information, documentation and witness statements that will be relied upon at the hearing will be supplied to the parties and the Tribunal no later than Friday, April 8, 2022.
27These Hearing Officers are not seized.
28No further notice is required.
"G.C.P. Bishop"
G.C.P. BISHOP HEARING OFFICER
"Warren Morris"
WARREN MORRIS HEARING OFFICER
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.