Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 21, 2021
CASE NO(S).: PL210020
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Stephen Jesse Ward
Subject: Minor Variance
Variance from By-law No.: 75-2006
Property Address/Description: 138 North Shore Rd
Municipality: Town of Saugeen Shores
Municipal File No.: A-2020-057
LPAT Case No.: PL210020
LPAT File No.: PL210020
LPAT Case Name: Ward v. Saugeen Shores (Town)
Heard: May 3, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Stephen Jesse Ward
Stephen Watt
MEMORANDUM OF ORAL DECISION BY JATINDER BHULLAR ON MAY 3, 2021 AND ORDER OF THE TRIBUNAL
1This was a hearing regarding an appeal by Melisa Berner and Jesse Ward (“Applicants/Appellants”) under s. 45(12) of the Planning Act (“Act”). The Applicants/Appellants requested a minor variance for increased height for a studio built atop an existing garage. The requested variance would amend Zoning By-law No. 75-2006 by increasing the maximum permitted garage height. The Committee of Adjustment for the Town of Saugeen Shores (the “Town”) refused the request.
2The subject property is located at 138 North Shore Road, Port Elgin, in the Town of Saugeen Shores. . It is designated as Shoreline Residential - SR and Environmental Hazard - EH in the Official Plan, and zoned Environmental Protection - EP and Residential First Density R1-2 zone
3Wayne and Deborah Kaufman made a request to be granted participant status and provided a participant statement. The Tribunal granted them participant status and accepted their participant statement.
4The Town did not attend. The Town Planner, Barbara Mugabe attended to observe and offered to assist the Tribunal if necessary.
5The Applicants/Appellants called Kristine Loft to provide expert opinion evidence in the area of land use planning. The Applicants/Appellants submitted a document book and it was marked as Exhibit 1 for the record.
EVIDENCE AND ANALYSIS
6Ms. Loft provided visual context of the proposed studio with respect to adjacent neighbours and also neighbours abutting from Cutter Road. Ms. Loft showed that the participant residing at 36 Cutter Road who have raised concerns with respect to views of the shoreline, have little views regardless of the proposed studio. She showed that only at the extreme edge of their street would they have some visibility towards the shoreline.
7Ms. Loft also opined that since there were minor change during the processing of the application whereby the requested variance was changed from 6.43 metres (“m”) to 6.65 m that a recirculation was not necessary versus what the participant has stated. The Tribunal finds that this was appropriately considered and followed through in the Town’s processing of the request.
8The Tribunal, if it were to allow the appeal, must be satisfied that the necessary statutory tests per s. 45(1) of the Planning Act (the “Act”) are met. The tests are for each variance separately as well as collectively that they;
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-law;
are desirable for the appropriate development or use of the land building or structure; and,
are minor.
9Ms. Loft reviewed the proposal with respect to s. 2 of the Act. She opined that the proposal has specific regard for s. (a) and (h) in that natural area features and functions will continue to be protected and this will provide for orderly and continued development of safe and healthy communities.
10Ms. Loft briefly reviewed the applicable policies in the Provincial Policy Statement 2020 (“PPS 2020”) and opined that the proposal is consistent with PPS 2020. She stated that this consistency is indirectly through conformity with the applicable Official Plans which PPS 2020 directs are the most important vehicle for implementation of the provincial policy.
11Ms. Loft reviewed the County of Bruce Official Plan (“COP”). Ms. Loft opined that the proposal conforms with COP policy 5.2.2.2 and s. (1) and (2) which generally encourage that the properties like in the Applicants/Appellants’ proposal shall be the basis contributing towards for widest range of residential, tourism and economic aspects in the County of Bruce. Ms. Loft also reviewed policy 1.2.6.2 (a) and opined that the proposal is in keeping with the character of the nearby area.
12Ms. Loft reviewed the Town of Saugeen Shores Official Plan (“TOP”) and opined that the proposal conforms with the TOP. She stated that the studio is built on top of the garage, Ms. Loft opined that in consideration of policy 2.8.6.1 of the TOP, the proposal is not a development over unstable soil as the participant has alluded to and policy 2.8.6.1 requiring Geotechnical Study is not applicable. In further review, Ms. Loft opined that in respect of policy 2.9.1 of the TOP, the proposal is compatible with adjacent land uses.
13In review of the Town of Saugeen Shores Zoning By-law No. 75-2006 (“ZBL”), Ms. Loft opined that the proposal conforms except for the requested minor variance. Ms. Loft stated that provision 3.1.1 in the ZBL governing accessory uses is conformed with as it is an appropriate accessory. Ms. Loft identified s. 3.1.3 which sets a maximum limit of 5.0 m for accessory building. She opined that the proposal represents an accessory building that will have no plumbing, kitchen or washroom and it is set to be a studio. She added that the accessory building will have lower height than the dwelling unit and is otherwise well situated and will fit in with other properties along North Shore rod.
14Ms. Loft opined that the requested variance is minor as to its impact. Ms. Loft stated that the test for minor is not just numerical as noted by the participant but rather related equally to subjective assessment. Ms. ZBL opined that the general intent and purpose of the ZBL in limiting height as to stop manifestation of large negative impacts on nearby properties. She opined that the proposal impact is minimized as the studio will have lower height s compared to the main dwelling unit at the subject property.
15Ms. Loft concluded that the proposal fully meets the criteria set in s. 45(1) of the Act.
16In all respects, the Tribunal finds that the minor variance application is consistent with the PPS, conforms to the Growth Plan and has regard to the provincial interests set out in s. 2 of the Act.
17In making this decision, the Tribunal also has had regard for Town staff’s recommended approval of the proposal. The Tribunal also have the unopposed and uncontroverted expert opinion evidence of Ms. Loft in support of the proposal.
18Hence, in consideration of all the evidence and information before the Tribunal and as directed by s. 45(1) of the Act, the Tribunal finds that the requested minor variance is desirable for the appropriate development and use of the land and existing garage and associated dwelling structures.
ORDER
19The Tribunal allows the appeal in part and authorizes the following variance to provisions in s. 3.1.3 of the Town of Saugeen Shores Zoning By-Law No. 75-2006;
a. A height of 6.65 m for the Accessory Use is allowed as opposed to 5m required.
20Should any difficulties arise in implementing this order, the Tribunal may be approached.
“Jatinder Bhullar”
JATINDER BHULLAR
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.