Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 08, 2021 CASE NO(S).: PL210052

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

Applicant and Appellant: Nick and Angela Sanci Subject: Minor Variance Variance from By-law No.: 122-2009 Property Address/Description: 838 Sixth Street North/ Plan 604, Lot 11 Municipality: Town of South Bruce Peninsula Municipal File No.: A-2020-062 LPAT Case No.: PL210052 LPAT File No.: PL210052 LPAT Case Name: Sanci v. South Bruce Peninsula (Town)

Heard: May 18, 2021 by video hearing

APPEARANCES:

Parties Nick and Angela Sanci

Counsel Russell Cheeseman

Town of South Bruce Peninsula No one appeared

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON MAY 18, 2021 AND ORDER OF THE TRIBUNAL

1This matter proceeded to a hearing on May 18, 2021. The Town of South Bruce Peninsula (“Town”) did not oppose this appeal by Angela Sanci and Nick Sanci (the “Appellants”), and there were no other Parties to this proceeding. There were also no Participants.

2The Appellants appeal from the refusal of the Town to grant the following variances from the Town’s Zoning By-law No. 122-2009 (“ZB”) in relation to the property owned by the Appellants located at 838 Sixth Street North in the Town, being Lot 11, Plan 604, within the County of Bruce (“Subject Property”):

i. relief from Section 6.1.2 of the Town ZB to permit a maximum height for an accessory structure of 6.14 metres, where 5.0 metres is permitted, and,

ii. relief from Section 6.1.1 a) of the Town ZB to permit a minimum interior side yard setback for an accessory structure of 0.88 metres, where 1.0 metre is required.

(collectively, the “Variances”)

3The Appellants’ counsel notes that the Variances represent an amendment to the Appellants’ original application to the Town, which is discussed further at paragraph [11] below.

4The Subject Property currently comprises an existing one-storey dwelling, a detached garage, a gazebo-style enclosure, and a two-storey storage building backing onto a heavily wooded area with residential development located on all properties adjacent to the Subject Property. The lot dimensions are: 28.94 metres of frontage on Sixth Street North and approximately 0.17 hectares in lot area. The Subject Property is part of a residential community dominated by low-density residential development in the form of single detached dwellings, and designated within the Secondary Urban Community of Sauble Beach by the County of Bruce Official Plan (“Bruce OP”). The Subject Property is designated Shoreline Development by the Town’s Official Plan (“Town OP”) and is presently zoned Resort Residential (R2) under the ZB.

5The following materials were before the Tribunal during this proceeding:

(a) Witness Statement (“WS”) of Savas Varadas, a professional planner retained by the Appellants who was qualified without objection to provide opinion evidence to the Tribunal on land use planning matters, made Exhibit 2 in this hearing; and

(b) Joint Document Book of the Parties, comprising 17 tabs, made Exhibit 1 in this hearing, which contained the following items:

• Curriculum Vitae of Savas Varadas, MCIP, RPP (TAB 1)
• Acknowledgement of Expert’s Duty – Savas Varadas (TAB 2)
• Application for Minor Variance (TAB 3)
• Revised Minor Variance Sketch (TAB 4)
• Architectural Plans (TAB 5)
• Key Map of Subject Lands (TAB 6)
• Photographs of Subject Lands Taken by Savas Varadas (TAB 7)
• Notice of Public Meeting for December 16, 2020 (TAB 8)
• Staff Report from December 16, 2020 (TAB 9)
• Conservation Authority and Town of South Bruce Peninsula Comments (TAB 10)
• LPAT Appeal Application (TAB 11)
• PIN 33155-0366 (LT) – Parcel Register (TAB 12)
• Planning Act, R.S.O. 1990, c. P.13 (Excerpts) (TAB 13)
• Provincial Policy Statement (2020) (Excerpts) (TAB 14)
• Bruce County Official Plan – September 2017 Consolidation (TAB 15)
• South Bruce Peninsula Official Plan – January 2019 Consolidation (TAB 16)
• Town of South Bruce Peninsula Zoning By-law No.122-2009 (Excerpts) (TAB 17)

6The Variances relate to the storage building that the Appellants had constructed in the west rear corner of the Subject Property during 2020 (the “Structure”). The Appellants did so without having been granted a building permit by the Town and the evidence before the Tribunal indicated that the Town had concerns about the height of the Structure and its setback from the neighbouring property – which necessitated the Appellants’ application for the Variances. The Structure’s height as constructed was 1.14 metres taller than permitted by the ZB and the rear corner of the structure was 0.88 metres from the neighbouring lot, which is 0.12 metres (12 centimetres) less than the 1 metre set back required by the ZB. However, most of the Structure was not encroaching on the permissible setback.

7Interestingly, the next-door neighbour closest to the Structure apparently had no objections to it or to the Variances sought by the Appellants. A total of eight neighbours also indicated their consent to the Appellants’ application by way of ‘support letters’ as noted in the WS of Mr. Varadas and in his oral evidence before the Tribunal.

8On the other hand, several other residents in the area nearby to the Subject Property apparently objected before the Town’s Committee of Adjustment to the Structure and to the requested Variances. However, none of those residents sought Party or Participant status before the Tribunal, therefore there was no direct evidence before the Tribunal concerning the specific details of their objections or the basis for them. The Town’s municipal record seems to suggest that the residents’ concerns related to the following: (a) the Appellants had ‘not followed the rules’ by building the Structure before having a building permit and without being granted the Variances; and (b) they felt the Structure had windows, a small balcony and a door, raising the possibility of human habitation and privacy issues.

9The opinion evidence of Mr. Varadas was unchallenged and, in the Tribunal’s view, satisfactorily established that:

1 The Structure has regard to the matters of provincial interest set out by s. 2 of the Planning Act, R.S.O. 1990, c. P.13 (“PA”).

2 The Structure is consistent with policy statements made by the Province, as required under s. 3 of the PA, being the Provincial Policy Statement, 2020 (“PPS”).

3 The Variances satisfy the four-part test set out in s. 45(1) of the PA, being:

i. the general intent and purpose of the official plan is maintained;

ii. the general intent and purpose of the by-law is maintained;

iii. that the development is desirable for the appropriate development or use of the land, building or structure; and

iv. the variance is minor in nature.

10More specifically, Mr. Varadas testified that:

1. The Structure makes more efficient use of the Subject Property which has further development allowances, and does so appropriately based on existing infrastructure, in accordance with the PA and the PPS.

2. There are no features on the Subject Property that are indicative of natural heritage features or water features that require protection or special consideration pursuant to the PPS or otherwise, as further confirmed by the report of the Grey Sauble Conservation Authority (“GSCA”), in their comments provided to the Town on December 4, 2020.

3. As the Subject Lands are used for residential purposes and the Structure is accessory to that use, its use is therefore permitted within the Secondary Urban Community land use designation under the Bruce OP.

4. The Structure seeks to maximize its floor area usage over two storeys in a form that can be described as compact, being only 35 square metres in footprint area, again in conformance with the Bruce OP.

5. The Structure otherwise maintains the general intent and purpose of the Bruce OP.

6. As the Subject Property is used for seasonal/permanent residential land uses in the form of a single-detached dwelling, the Structure’s use is subsequently permitted within the Shoreline Development land use designation pursuant to the Town OP.

7. The Structure, while exceeding the accessory structure height permission by 1.14 metres (3.75 feet), is not disproportionately out-of-scale with its surroundings. It therefore meets the requirement of the Town OP and ZB, as the topography behind the Structure rises significantly, both providing a natural backdrop behind the structure and elevating the neighbouring dwellings far behind the Structure well above its height. The tree canopy directly around the Structure is also much higher, thus ensuring its roof does not eclipse the natural treeline. Finally, the size of the Structure is clearly smaller than the principal dwelling structures located on the Subject Property and in the immediate area, making it clearly accessory or subordinate to the existing surrounding development. The Structure also otherwise maintains the general intent and purpose of the Town OP.

8. The Subject Property is an existing lot of record and therefore is granted development rights by the ZB despite not meeting the minimum frontage and area requirements of the R2 zone. Section 6.1 of the ZB permits accessory structures but prohibits human habitation within those buildings unless otherwise stated. The Structure is to be used for storage and the building plans submitted to the Town by the Appellants state that both levels of it are for storage purposes – there was no contrary evidence before the Tribunal. While the Structure does have a second storey balcony, there is no specific prohibition on balconies in the ZB and there is no exterior entrance to the upper level of the structure that would be indicative of a separate use for each level.

9. Section 6.1.1 of the ZB states that in a R2 zone, a 1 metre (3.3 foot) minimum side yard and rear yard setback is required for accessory structures. The recent survey of the Subject Property indicated that while the existing rear yard setback for the Structure is 1.36 metres and thus compliant, the existing side yard setback is 0.88 metres, or 0.12 metres (12 centimetres) short of compliance. However, this setback still offers enough space to walk around the structure without the need to trespass on the neighbouring lands. Furthermore, the encroachment does not impact the adjacent property to the west, as that portion of the property is heavily wooded which mitigates visual impacts.

10. The Structure, at 6.14 metres in height, is 1.14 metres above the maximum permitted height for such a structure under the ZB. It would appear that the intention of the ZB is to minimize the height of accessory structures in comparison to principal structures in order for them to maintain an ancillary appearance, and to reduce their impacts to properties beside and behind the property they are located on.

11. Given the minimal size of the Structure, the effect of its additional height is minimized. The topography behind the Structure rises which also mitigates the impact of its additional height on the properties behind the Subject Property. Furthermore, the buildings on the properties located behind the Subject Property are sited far from their rear lot lines and amenity areas, thus there are no shadowing issues caused by the Structure. The same can be said for the property to the west of the Subject Property. The minimal size of the Structure ensures that it retains an incidental appearance on the Subject Property despite the additional height.

12. The lot coverage of the Subject Property is proposed to be approximately 16%, which is slightly over half the permitted maximum of the R2 zone. This is an indication that it is not developed to its maximum potential, which also assists to mitigate the additional height of the Structure, which otherwise also maintains the general intent and purpose of the Town ZB.

13. The Structure is desirable for the appropriate development or use of the Subject Property, as it remains accessory in appearance in relation to principal land uses on the Subject Property and the surrounding area.

14. The Variance to the required side yard setback of 1 metre to 0.88 metres, or an encroachment of 0.12 metres (12 centimetres) is minor. The resulting setback of 0.88 metres is indiscernibly different from the required minimum setback of 1 metre and the encroachment does not impact the adjacent lands any differently than would a 1 metre setback;

15. The Variance to the maximum height of the Structure to 6.14 metres, or 1.14 metres over the maximum permission, is minor. The additional height does not impact the surrounding lands as the additional 1.14 metres does not visually impact those properties, nor does the additional height impact their amenity areas or usage.

16. Therefore, the proposed Variances meet the fourth test of a minor variance, being that they are minor in nature. The Variances also adhere to good planning principles.

11The Appellants’ counsel points out that this appeal seeking a height variance as outlined in paragraph [10], constitutes an amendment to the original application for variances that was before the Town’s Committee of Adjustment. Under s. 45 (18.1) of the PA, the Tribunal is empowered to render a Decision on such an amended application, but notice must then be provided to all those individuals who had been given notice of the original application. However, an exception to this is provided under s. 45 (18.1.1) whereby no such notice is required if the amendment is found to be minor. The Appellants’ counsel argues that the amendment here concerning height (from 1 metre requested to 1.14 metres) is minor. The Tribunal agrees with this submission and as set out in paragraph [13] below does not require notice to be provided.

12In conclusion, upon review of the WS and Joint Document Book materials; hearing the expert testimony of, and conclusions reached by Mr. Varadas as described in paragraphs [9] and [10] above; and taking into account the provisions of s. 2, s. 3, s. 45 (1), s. 45 (18.1) and s. 45 (18.1.1) of the PA and the relevant provisions of the PPS and of the Bruce OP and the Town OP, the Tribunal is of the opinion that the requested Variances satisfy the four-part test set out in s. 45 (1) of the PA, have regard for the provincial interests of s. 2 of the PA, are consistent with the PPS, will cause no negative impacts to the surrounding neighbourhood, are reasonable, desirable, in the public interest and represent good planning.

ORDER

13The Tribunal therefore allows this appeal and Orders as follows that:

(a) the Variances described in paragraph [2] above with respect to 838 Sixth Street North in the Town of South Bruce Peninsula, being Lot 11, Plan 604, within the County of Bruce, are hereby authorized; and

(b) No notice of this amended application is required pursuant to the provisions of subsection 45 (18.1.1) of the Planning Act, R.S.O. 1990, c. P.13.

“William R. Middleton”

WILLIAM R. MIDDLETON 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.