2581287 Ontario Ltd. v. Clearview (Township), 2022 CanLII 109917

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 17, 2022

CASE NO(S).: OLT-22-003849 (Formerly PL180646)

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

Applicant/Appellant: 2581287 Ontario Ltd.

Subject: Minor Variance

Description: To reduce landscaping screen in order to construct an addition to the existing daycare building.

Reference Number: 22-A03

Property Address: 209 North Street

Municipality/UT: Clearview/Simcoe

OLT Case No: OLT-22-003849

OLT Lead Case No: OLT-22-003849

OLT Case Name: 2581287 Ontario Ltd. v. Clearview (Township)

Heard: November 1, 2022 by video hearing

APPEARANCES:

Parties	Representative
2581287 Ontario Ltd.	Aruna Bandaranayake

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is the appeal filed by 2581287 Ontario Ltd. (“Applicant”) against the decision of the Township of Clearview (“Township”) Committee of Adjustment’s (“COA”) decision to deny an application for Minor Variance (“MV”) from Zoning By-law No. 06-54 (“ZBL”) concerning 209 North Street (“subject site” / ”subject property”).

2The subject site is legally described as PLAN 194 PT PARK LOT 21 AND RP 51R30466 PT 1 (Roll No: 432902000314850) formerly the Town of Stayner (“Stayner”), now the Township of Clearview. The subject property is owned by 2581287 Ontario Ltd. and consists of an existing daycare business, operating from an existing building with parking and outdoor spaces.

3The subject site is located in the northwest quadrant of Stayner. It has 23.5 metres (“m”) of street frontage, a lot depth of 95.25 m and a lot area of 2,238 square metres (0.58 acres). The subject property is zoned Institutional (IN).

4Although the Community Planning and Development staff report recommended the approval of the MV in the report to the COA, the application was refused.

5In advance of the hearing the Township notified the Tribunal that it would not be participating in nor attending the hearing.

6There were no Party or Participant request presented to the Tribunal for the hearing.

BACKGROUND TO THE APPLICATION

7The subject property was constructed in 2002 as a stand-alone childcare center with a capacity of 59 spots. Tiny-Shiny Childcare Inc. (“Tiny-Shiny”) is the operator of the center. The center has 10 full-time qualified staff, four part time staff, licenced for 24 pre-schoolers, 15 toddlers and 20 school aged children and it operates Monday to Friday, 7:00 AM to 6:00 PM. Tiny-Shiny is the only registered childcare in the community (Stayner) and is serving the needs of families from Stayner, Collingwood, Creemore, Wasaga Beach, Blue-Mountain, Alliston and other surrounding areas.

8Tiny-Shiny works with Children and Community Services of the County of Simcoe to accommodate children of low-income families and has a long waiting list. Currently the center has no infant room and only three infants are allowed in the toddler program. The center is a convenient training location for Co-Op students from Stayner Collegiate Institute and a placement institute for ECE (Early Childhood Educator) students in Ontario Colleges.

9The existing building does not have the required space for an infant room, staff room, and a storage or indoor play area for use in inclement weather.

THE DEVELOPMENT PROPOSAL

10The Applicant is proposing an addition to the existing daycare business. The proposed addition will be added to the rear and east of the existing building and, although the proposed addition will meet the interior side yard setback, the required 3 m wide landscaping screens and buffers cannot be maintained. The addition will create 49 new childcare spaces (10 – infant, 15 – toddler, 24 – preschooler), will create a minimum of eight additional full-time jobs as well as a staff room.

11The proposed addition will be “Barrier Free” and will have an elevator to the second floor, to accommodate physically challenged children.

12Due to the location of the proposed addition to the existing building, the Applicant is unable to meet the required 3 m wide landscaping screen requirement and, as such, is seeking a relief from the landscaping screen requirements of the ZBL as follows:

1. Relief from Sections 3.16.2.2 (l), “Institutional (IN), For Full Municipally Serviced Development” as it relates to landscaping screens and buffers and Section 2.13.2, Landscaping Screen Required” where the By-law requires a 3 m wide landscaping screen whereby the Applicant is proposing a 1.5 m wide grassed strip and a 2 m high privacy fence on the east property line.

LEGISLATIVE FRAMEWORK

13An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) has been met. The four tests are:

1. The intent and purpose of the official plan is being maintained;
2. The intent and purpose of the zoning by-law is being maintained;
3. Is desirable for the appropriate development or use of the land, building or structure; and
4. Is minor.

14In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act, and the decision of the approval authority under s. 2.1 of the Act.

SUBMISSIONS OF THE APPLICANT

15The Applicant disagreed with the COA’s reasons for refusing the application, namely a concern “that if a steel roof was installed, snow could fall and result in damage or injury to persons or property”. The Applicant argues that in the drawings the roof of the proposed building clearly shows that it will be covered by the asphalt shingles (Exhibit 3, Appendix C) and will be constructed in accordance with the Ontario Building Code.

16The Applicant further drew the Tribunal’s attention to the opinion of the Community Planning and Development staff report (the “planning report”), that was in favour of the requested variance. The planning report properly assessed matters of provincial interest and the four tests under s. 45(1) of the Act.

ANALYSIS AND FINDINGS

17Based on a thorough review of the factual evidence presented to the Tribunal, including the planning opinion from the planning report, the Tribunal finds that the requested variance for the proposed development meets the four tests; has regard to the matters of the provincial interests and is representative of good planning in the public interest, as it would promote economic development, it will lead to creation of the employment opportunities, it would provide a service to the surrounding communities and it will utilize the municipal services and the infrastructure of the Township.

ORDER

18THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 06-54, as stated in paragraph 12 above, is authorized subject to the following conditions:

a. That the 1.5 m relief from Sections 3.16.2.2.I) "Institutional (IN), For Full Municipally Serviced Development" as it relates to landscaping screens and buffers, and Section 2.13.2 "General Provisions, Landscaping Screen Required" be applied to the east property line, as illustrated in the box outlined in blue, as shown on the Site Plan attached to the planning report.

b. That the Applicant be required to build a 2 m high tight wooden board privacy fence, as shown on the Plan: A0 - Site Plan, Tiny Shiny Daycare, by 360 Smart Design, dated January 2022 within six months of occupying the new addition.

“P. Tomilin”

P. Tomilin

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.