Tracey Adams v. South Bruce Peninsula (Town), 2021 CanLII 134583

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

December 24, 2021

CASE NO(S).:

OLT-21-001107

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant:

Tracey Adams

Subject:

Minor Variance

Property Address/Description:

123 Second Ave N; Plan 355 Pt Lot 33 Pt Lot 34

Variance from By-law:

A74-19.54

Municipality:

Town of South Bruce Peninsula

Municipal File No.:

A-2021-043

OLT Lead Case No.:

OLT-21-001107

OLT Case No.:

OLT-21-001107

OLT Case Name:

Tracey Adams v. South Bruce Peninsula (Town)

Heard:

November 30, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Tracey Adams (“Appellant”)

Self-represented

Town of South Bruce Peninsula (“Town”)

Eric Davis

Dan Palermo (“Applicant”)

Ronald Sleightholm

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

1Tracey Adams (“Appellant”) has appealed the decision of the Town of South Bruce Peninsula (“Town”) Committee of Adjustment (“COA”) of minor variances for the property located at 123 Second Avenue North in Sauble Beach (“subject lands”).

2The application proposes to enlarge an existing legal non-conforming cottage residential use. The non-conforming status relates to there being three dwellings on a single lot. This application relates to a dwelling which was also the subject of Minor Variance Application A74-19.54 which permitted replacement of a dwelling but restricted increases in size, height or volume.

3The application seeks to the further increase the height, area, and volume of the structure by:

a) increasing the ground floor area from 59.6 m² to 67.6 m²;

b) increase the gross floor area from 96.8 m² to 107.9 m²;

c) to also recognize the height of the proposed structure and the area of the porch and deck.

Requested change to Original Variances

4The Tribunal was asked to amend the application from what was originally before the Committee. It must consider whether the amendment is minor and whether further notice is required under the Planning Act (“Act”).

5Counsel for the Town and the Applicant were of the view that the variances in this hearing, as compared to the originally requested variances, arose due to a second porch with an area of 19.3 square metres which was inadvertently not included in the COA Decision (despite being shown in the Schedule “A” to the Decision) and that the height variance was incorrect in that it should be have been noted as 6 metres (“m”), not 4.93 m, given how building height is calculated in the Zoning By-law.

6The Tribunal finds that the changes are indeed minor. The Tribunal accepts this evidence and finds that the amendments are minor in nature with the Town fully supporting the request. Therefore, no further notice is required under s. 45(18.1.1) of the Act.

The Hearing

7Ms. Adams declared she had not obtained expert opinion evidence to challenge the evidence of the County Planner, Mr. Kingsbury and as such requested the ability to prove her case through cross examination.

8It was noted by the Tribunal that she bears the responsibility to ensure the Tribunal understands the reasons for her appeal and to draw her evidence to satisfy the Tribunal that the relief sought should not be granted.

Site and Area Context

9Currently on the subject property there are three (3) cottages; the owner has replaced one of the cottages with a new cottage. The purpose of this application is to enlarge an existing legal nonconforming cottage residential use. The nonconforming status relates to the already existing three dwellings on a single lot. This application also relates to a dwelling which was also the subject of a Minor Variance Application which allowed the replacement of a dwelling but restricted increases in height sizes and/or volume.

10The Subject Property is an approximately 1,951 square metre parcel of land located along the east side of Second Avenue North in the settlement area of Sauble Beach. The Subject Property, as noted above, is municipally addressed as 121, 123 & 125 Second Avenue North. The Subject Property is legally known as Part Lots 33-34, Plan 355, former Township of Amabel.

11The Subject Property is bounded primarily by residential and recreational residential uses:

a. Immediately to south is an unopened municipal access allowance (approximately 5m in width), which abuts a single detached dwelling.

b. Detached dwellings are located on the lands to the west, north, east and south.

c. Immediately to north is an unopened municipal access allowance (approximately 7.6 m in width), which abuts a single detached dwelling.

d. A small cottage court and single detached dwellings are located to the west.

e. The Subject Property is approximately 250 metres north of Sauble Beach’s Main Street. The area is characterized by predominantly small cottages and cottage courts, many of which were constructed in the 1980’s and prior.

The Issues and Test

12In this Appeal, the issue before the Tribunal is whether each of the requested Variances meets the four tests set out in s. 45(1) of the Act, namely, if granted: (a) maintains the general intent and purpose of the Town’s Official Plan (“Town OP”); (b) maintains the general intent and purpose of the Town’s Zoning By-law No. 122-2009 (“ZBL”); (c) are minor, and (d) are desirable for the appropriate use and development of the Site.

13Additionally, the Variances must also be consistent with the Provincial Policy Statement 2020 (“PPS”) under s. 3(5) of the Act. The Tribunal must also have regard to matters of Provincial interest under s. 2 of the Act and to any decision made by the Committee, as well as all information and material that the Committee considered in making its decision.

PLANNING EVIDENCE

14The Tribunal heard from Tara Davis, Chief Building Official who provided an overview of the application and the planning process. The Tribunal also qualified Daniel Kingsbury, Bruce County Planner to give opinion evidence as an expert in land use planning in the proceeding.

15Ms. Davis provided a brief history of the Application in relation to an earlier COA application allowing the demolition of the pre-existing structure, building permit issuance and complaints received.

16She informed the Tribunal that in the Planning report dated May 26, 2021 planning staff were of the opinion that the application meets the four tests and the proposed enlargement, while not entirely on the footprint of the original cottage, was still within the ZBL and not anticipated to create any adverse impacts.

17It was explained that Ms. Adam’s concerns on appeal included: the application is not desirable for appropriate development of the property; will result in undue adverse impacts on the surrounding properties and neighbourhood; are not in accordance with section 9.7 of the Town’s Official Plan; will result in precedent settings for other neighbours in the area and streetscape will change drastically; will result in more individuals living/staying at this property and using the septic services. The use of septic services will be doubled resulting in potential sewage outflow.

THE PLANNING ACT

18The Planning Act specifically recognizes and provides tools to address legal non-conforming uses. Subsection 45(2)(a) of the Planning Act states that: 45(2) In addition to its powers under subsection 45(1), the committee, upon any such application,

(a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit:

(i) the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause

(ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed, or

(iii) the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by-law was passed or is more compatible with the uses permitted by the by-law than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee;

Notwithstanding a long-term planning goal that non-conforming uses move to conforming uses, the planning system specifically recognizes and provides tools to address legal nonconforming uses. The application meets the criteria set out in Subsection 45(2)(a) of the Planning Act.

Provincial Policy Statement (“PPS”), Growth Plan

19Mr. Kingsbury informed the Tribunal that the planning report did not specifically refer to the PPS because a review of the application prior to the planning report did not trigger any issues with the PPS.

20He also indicated that the specific Official Plan policies were not set out in the planning report dated May 26, 2021, but the general policies were discussed in the report.

21Noting that while the variances were considered through a planning perspective in regard to the PPS, he stated that the Grey Sauble Conservation Authority (“GSCA”) also reviewed the application and identified that in Section 3.1 of the PPS it has regulatory authority under Ontario Regulation 151/06.

22GSCA provided comments regarding natural heritage and water policies identified in Sections 2.1 and 2.2, respectively, of the PPS as per their Memorandum of Agreement (“MOA”) with the County of Bruce which represents their interests. They concluded there are no natural hazards identified on the subject property; the property is not regulated under Ontario Regulation 151/06; there are no natural heritage features identified on the subject property; and finally GSCA does not anticipate any impacts associated with the Section 2.2 policies which contains policies to protect sources of municipal drinking water from existing and future land use activities.

Maintain the General Intent and Purpose of the Bruce County’s Official Plan

23In the Bruce County Official Plan (“COP”) the subject property is Designated Secondary Urban. The County OP gives local Councils the ability to address legal non-conforming uses. An excerpt of the relevant County Official Plan section on legal non-conforming is Section 6.7 which states that:

24Notwithstanding Section 6.4 [Local Zoning By-laws], the Plan is not intended necessarily to prevent the continuation, expansion, or enlargement of uses which do not conform to the designations and provisions of this Plan. At their sole discretion, the Councils of the local municipalities may zone to permit the continuation, expansion or enlargement of legally existing uses, or changes to similar uses, provided that such uses:

i) Have no adverse effect on the present uses of the surrounding lands or the implementation of the provisions of this Plan;

ii) Are not located in a floodplain or floodway;

iii) Have regard for the Provincial Minimum Distance Separation Formula as amended from time to time, if applicable;

iv) Are accessible by a public road which is maintained by the appropriate authority as open to traffic on a year-round basis;

v) Are subject to any conditions that may be contained in a local

Municipal Official Plan;

vi) Must be in appropriate proportion to the size of the existing.

25Mr. Kingsbury briefly stated that the applicable section in the COP permits the continuation, expansion or enlargement of legally existing uses, provided that such uses have no adverse impacts on the present uses and surrounding lands, are located on an opened and maintained municipal road, must be an appropriate proportion to the size of the existing use, and will not create a traffic hazard.

26He opined that the relief sought satisfies the criteria noted in the COP.

Maintain the General Intent and Purpose of the Town of South Bruce Peninsula Official Plan (Local Official Plan)

27In the Local Official Plan Map the subject property is Designated Shoreline Development Area.

28Mr. Kingsbury advised that the general principles to be considered in the development of the Shoreline Development Area are set out as:

Shoreline development shall conform to the principles and to the policies of the Plan. The Shoreline Development Area within the Town recognizes the developed seasonal tourist commercial and permanent residential areas within the shoreline development areas along the shoreline and inland lakes and the communities of Sauble Beach.

29Mr. Kingsbury stated the appeal before the Tribunal pertains to a legal non-conforming use on the property. He turned to, s. 9.7 which speaks to Legal Non-Conforming Uses:

Land uses which legally existed on the date of the approval of this Official Plan that are neither designated in this Plan nor zoned in the implementing Zoning By-law as a permitted use are termed legal non-conforming uses and, in the long-run, should cease to exist. In some instances, however, it may be desirable to permit the extension or enlargement of such a legal non-conforming use in order to avoid unnecessary hardship. It is the intent of this Official Plan that any such extensions or enlargements be processed under the authority of Section 34(10) or Section 45(2) of the Planning Act as follows:

Pursuant to Section 45(2) of the Planning Act, the Committee of Adjustment may permit the enlargement or extension of legally-conforming buildings or structures, but no permission may be given to enlarge or extend the building and structure beyond the limits of the land owned and used in connection therewith on the date the by-law was passed.

30He opined that the criteria outlined in Section 9.7.2 for applications made under Section 45(2) of the Planning Act is satisfied given the enlarged structure is entirely within the limits of the Subject Property and that no setback have been requested it was his opinion that the Application satisfies the criteria for legal non-conforming uses and is in conformity with the Town’s OP.

31In his view, the relevant policies of the PPS and the Official Plans were appropriately considered and there were no issues with them in the context of the proposed ZBA.

Maintains the General Intent and Purpose of the Town of South Bruce Peninsula Zoning By-law

32The Subject Property is zoned Resort Residential ‘R2’ by the Zoning By-law In the Zoned Resort Residential (R2) in the Town of South Bruce Peninsula Comprehensive Zoning By-law. Permitted uses within this zone include single detached dwellings and accessory structures.

33Mr. Kingsbury stated the Subject Property has historically contained three (3) cottages which predate the passage of the Zoning By-law and that the Zoning By-law only permits one main building to be constructed on a lot except as specifically permitted and that it continues to be used for that purpose.

34Turning to s. 6.28(a) the by-law permits the strengthening or restoration of a non-conforming building or structure to a safe condition so long as the strengthening or restoration does not alter the height, area, size or volume of the building or structure or change its use to other than a conforming one.

35In citing this, it was his opinion that the application represents a modest change to the previous existing cottage; is keeping with surrounding cottages in the neighbourhood and the structure maintains a similar footprint and placement on the subject property to the previous structure. He explained that the marginally larger footprint is likely to have a similar impact to the abutting properties and the broader neighbourhood than the previous structure and maintains the setback provisions of the R2 zone.

36He opined that the proposed enlargement of the use is not anticipated to create adverse impacts. He explained that the Appellant’s property is approximately 26 m from the property line and through the use of photographs, illustrated a dense thicket as a berm which further provides privacy from the neighboring property. Photos also illustrated that the height, area, size or volume of the proposed cottage was similar to the compliment of cottages in the surrounding area including Ms. Adam’s cottage to the immediate north of the subject property.

37Ms. Adams highlighted her concern regarding increased sewage demand on the site through her cross-examination, of which he testified that new septic systems have been created to the satisfaction of the Town. In response, Mr. Kingsbury referenced Ms. Davis’s overview as having Town staff satisfied that the proposed increase in size and area will not increase the daily septic design wastewater flows between the previous existing and proposed dwellings and that the enlargement of the legal non-conforming use, as proposed, will not have additional adverse impacts to groundwater quality.

Variances are Minor and Desirable

38Mr. Kingsbury indicated that the application represents good planning and is desirable for the appropriate development of the Subject Property. It also accounts for a modest increase to what had been established on the site prior.

39The Tribunal heard no evidence to the contrary through Ms. Adam’s cross-examination of either Ms. Davis or Mr. Kingsbury that the application will have a negative impact on any of the abutting properties or the surrounding area.

Planning Analysis

40The County Official Plan permits the continuation, expansion or enlargement of legally existing uses, or changes to similar uses, provided that such uses have no adverse impacts on neighbouring properties. The Tribunal having heard the evidence through Mr. Kingsbury’s cross-examination has found no planning reasoning that the intention of the COP has been disregarded by the Applicant.

41The Local Official Plan recognizes that legal non-conforming uses may be enlarged or extended as long as the proposed change does not extend beyond the limits of the property that contains the legal non-conforming use. It was provided in evidence and illustrated by Mr. Kingsbury’s photographs that the cottage was solely on the subject property with a property line containing a significant thicket and berm between the Applicant’s and Ms. Adam’s property.

FINDINGS

42The Tribunal finds that the proposed relief sought through the requested variances are a modest intensification of an existing use.

43The Tribunal accepts the uncontroverted land use planning evidence and opinions of Mr. Kingsbury and is satisfied that the proposed development is consistent, conforms and furthers the policy direction and intent of the GP, the PPS, the County and Town’s OP and Polices and represents good land use planning.

44The 2019 application was required to permit the structure to be replaced entirely. This application is required to address to make the replacement structure larger. The dwelling under construction would have an increased footprint of approximately 12% and an increase in gross floor area of approximately 11% compared to the previous dwelling. The Tribunal sees this as being minor in nature.

45Through the visual evidence provided by Mr. Kingsbury, the Tribunal is satisfied that the size and height of the structure is consistent with the neighbourhood, which contains a mix of dwelling sizes and styles, ranging from small cottages to moderately sized single detached dwellings.

46The Tribunal finds that through the cross examination of the expert witness, sufficient regard has been given to the Appellant’s concerns raised in this Appeal.

47In particular, it should be noted for clarity that the Tribunal considers each appeal individually on its own planning merits. As a result, the determination of this matter will not result as precedent setting on future cases.

CONCLUSION

48After considering the submissions and upon hearing the witness testimony through cross examination, the Tribunal is of the opinion that while Ms. Adam has general concerns on the impact of change in her neighbourhood, those concerns are not within the scope of the Tribunal.

49For the foregoing reason, the Tribunal dismisses the Appeal.

ORDER

50THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to Zoning By-law No. 122-2009 are authorized.

“D. Chipman”

D. CHIPMAN

MEMBER

Ontario Land Tribunal

Website: 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.