Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 16, 2021
CASE NO(S).: PL210167
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Negar Motamed-Khorasani
Applicant: Brett and Jerri Lynn Levitt
Subject: Minor Variance
Variance from By-law No.: 37-2006
Property Address/Description: 503862 Grey Road 12
Municipality: Municipality of West Grey
Municipal File No.: A06-2020
LPAT Case No.: PL210167
LPAT File No.: PL210167
LPAT Case Name: Motamed-Khorasani v. West Grey (Municipality)
Heard: September 7, 2021 by video hearing
APPEARANCES:
Parties Counsel/Representative*
Negar Motamed-Khorasani Self-Represented
Brett and Jerri Lynn Levitt Anthony Woolery No one appeared Self-Represented
Municipality of West Grey Errol Treslan*
MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON SEPTEMBER 7, 2021 AND ORDER OF THE TRIBUNAL
1Brett and Jerri Lynn Levitt (“original Applicants”), of 503862 Grey Road 12 (“Subject Property”) in the Municipality of West Grey (“Municipality”), County of Grey (“County”), sold the Subject Property to Anthony Woolery who turned up at the hearing. Mr. Woolery (the “Applicant”) now assumes the application and appeal as the new owner.
2The Applicant proposed, on the Subject Property: To vary the provisions of section 8.2.4(d) of the Zoning By-law No.37-2006 to permit an accessory structure 3.09 metres (“m”) (12.7 feet, “ft”) from the interior lot line whereas 15.2 m (49.9 ft) is required. The effect of which is to permit the placement of an accessory structure for storage purposes on the Subject Property.
3The original Applicants applied for authorization of the variance, which was allowed by the Municipality’s Committee of Adjustment (“COA”) on February 18, 2021. Negar Motamed-Khorasani (“Appellant”), the adjacent property owner at 503860 Grey Road 12, filed an appeal to the Local Planning Appeal Tribunal (now the Ontario Land Tribunal (“Tribunal”)).
4The issue for the Tribunal was whether the proposed development will be consistent with or in conformity with the Provincial Policies and legislative requirements and whether the variance requested meets the statutory tests pursuant to s. 45(1) of the Planning Act.
5At the hearing, the Tribunal advised the lay Appellant, that she has the right to call and examine her own witness and to cross-examine her opponent’s witness. She called Andrew Galbreath as a fact witness and she cross-examined the Municipality’s city planner witness, Lorelie Spencer.
6The Appellant’s apprehension gleaned from the appeal is largely that the shed which was built by the previous owners who preceded the Levitts (the Levitts bought the Subject Property in 2015), had built the shed too close to the property’s boundary lot line. She believed that the by-law is flouted and her rights as property owner (she bought her property in 2016) is affected by the shed being placed that close (some 3 feet in her calculation) from the property lot line.
7Mr. Galbreath testified that in 2012/2013, when he was contracted to work for the previous owner of the Appellant’s property, the shed, according to his memory of it, was a structure with a different roof type and was further from where it is at present. He believed that the shed had either been moved or rebuilt to its current location.
8Under cross-examination, Mr. Galbreath confirmed that he does not live in the neighbourhood (he lives about 50 kilometres away) and that he has not done any work for the previous or present owners of the Applicant’s Subject Property.
9The Tribunal understands that Mr. Galbreath is a contractor and has carried out some works on the Appellant’s property but cannot rely on his recollection of the siting of the shed. At best, his recollection will place the shed in situ but does not indicate accuracy of the distance to the property lot line.
10Counsel for the Municipality, Errol Treslan, called Ms. Spencer who gave evidence in support of the variance application. She was qualified by the Tribunal to give expert opinion evidence on land use planning matters. She opined that the variance meets the section 45(1) requirements of the Planning Act. Her Planning Report dated January 18, 2021 is found at page 63 of the appeal records.
11Her opinion was that there was little or no negative impact from the proposed development and the shed is located about 3.09 m (12.7 ft) from the boundary lot line as the survey plan shows (Exhibit 3). The proposed development is consistent with the Provincial Policy Statement, 2020, complies with the County Official Plan, the Zoning By-law and meets the four statutory tests. Ms. Motamed-Khorasani did not shake the evidence of Ms. Spencer during cross-examination.
12The Tribunal is satisfied based on the uncontradicted evidence before it that the variance should be authorized for the reasons that follow.
13The Tribunal is satisfied that the proposed variance at the Subject Property has regard for the matters of provincial interest as set out in section 2 of the Planning Act, in particular section 2(h) on the orderly development of safe and healthy communities and section 2(r) the promotion of built form that (ii) encourages a sense of place.
14An applicant must satisfy the Tribunal that the four tests in section 45(1) of the Planning Act are met i.e. that the variance maintains the general intent and purpose of the Official Plan and the Zoning By-law, is desirable for the appropriate development or use of the land, building or structure and is minor in nature.
EVIDENCE AND ANALYSIS
15The Subject Property is legally identified as part lot 9, concession 12 in the geographic township of Glenelg and is designated as 'Agricultural', 'Rural' and 'Hazard' under the County Official Plan (“OP”). The location of the accessory structure would be within the agricultural designation. Residential dwelling units and accessory structures are generally permitted within the agricultural designation.
16The Subject Property is zoned A1 (Agriculture), A2 (Rural) and NE (Natural Environment) within the Municipality of West Grey Comprehensive Zoning By-law No. 37-2006 (“ZBL”). The location of the accessory structure is within the A1 zone. The provisions of the A1 zone permit accessory structures.
17Ms. Spencer stated that the Applicant has requested relief from the provisions of section 8.2.4(d) of the ZBL to permit a reduced interior side yard setback. In total, the side yard would be reduced from the required 15.2 m (49.9 ft) by 12.2 m (39.9 ft). The side yard setback proposed is approximately 3.09 m (12.7 ft). Planning staff appreciates that the structure has been in place on the property since prior to the purchase of the subject lands by the Levitts five years ago. However, the intent of the interior side yard setback is to provide separation between adjacent land uses and to provide sufficient distance for building maintenance, repair and for safety reasons in the event of fire.
18Planning staff notes that had the structure been less than 14 square metres (“m2”) in size the side yard setback requirement would have been 6 m. However, the structure is 17 m2 which requires a side yard setback of 15.2 m. The placement of this structure maintains a cluster of the structures on the subject lands in this case and is considered by staff to be minor in nature.
19Ms. Spencer opined that within the agricultural designation, it is desirable to avoid the use of additional farmlands wherever possible. Planning staff is satisfied that the placement of the structure within the farm cluster and the maintenance of a sufficient setback that continues to maintain the intent of the provision is acceptable.
20The general intent and purpose of the County OP within the agricultural and rural designations is to prevent the unnecessary use of farmland for non-farm structures. The general intent and purpose of the hazard designation is to prevent the unnecessary placement of structures within, or in proximity, to hazard lands to prevent adverse impacts. She is of the view that the placement of the accessory structure maintains the general intent and purpose of the OP in this regard.
21The general intent and purpose of the ZBL is to ensure the compatibility of adjacent and surrounding land uses and to ensure healthy separation between structures. Ms. Spencer’s opinion is that the placement of this structure meets the general intent and purpose of the Zoning By-law.
FINDINGS
22The Tribunal finds that under the Provincial Policy Statement, 2020 (“PPS”), the proposal is an efficient use of land. Policy 1.1.4.1(a) of the PPS speaks to rural areas where healthy, integrated and viable rural areas, should be supported by building upon rural character, and leveraging rural amenities and assets. The Subject Property is designated agriculture and the storage shed is a permitted agricultural and agriculture related use on rural lands (Policy 1.1.5.2).
23The OP supports land use planning objectives for rural settlements. This area is intended to be the primary location for agricultural activities. The efficient use of land and services is encouraged through increased use of farming areas. The design of the accessory shed is considerate and sensitive to the character of the agricultural neighbourhood. Placing the storage shed in the farm cluster structures also avoids siting it on arable land.
24This development is compatible with the adjacent character of the area. The primary use of the property as rural agricultural with an existing dwelling and the proposed accessory storage shed of an acceptable size is encouraged. The Tribunal finds that the application is compatible with the surrounding land uses of the neighbourhood. The Tribunal is satisfied that the variance sought maintains the general intent and purpose of the OP.
25The ZBL implements the policies of the OP. The structure is sited in the A1 agricultural zone of the Subject Property where accessory structures are permitted. The proposed storage shed will maintain the existing appearance of the rural area. The interior side yard setback of 3.09 m to the lot line will ensure adequate separation between structures and maintenance capability. The storage shed is compatible with the external rural residential character and appearance of the dwelling. The Tribunal is satisfied that the proposed variance maintains the general intent and purpose of the ZBL.
26The proposed variance is suitable for the land as it results in a storage shed for the owner and will increase the agricultural use amenity. The Subject Property is within a rural area where the proposed land use of such an accessory agricultural storage usage is permitted. The proposed development is appropriate for the Subject Property and represents good planning. The Tribunal is satisfied that the proposed variance is desirable for the appropriate use and development of the Subject Property.
27The proposed variance will not result in unacceptable adverse impact on the adjacent property such as massing or shadowing. The storage shed built form will be compatible with the rural neighbourhood and built form character of the surrounding area. There is no evidence to show any unacceptable adverse impact on the occupants or owners of surrounding properties. The Tribunal is satisfied that the variance is minor in nature.
ORDER
28The Tribunal orders that the appeal is dismissed and the variance to Zoning By-law No. 37-2006 is authorized.
“T.F. Ng”
T.F. NG 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