Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 25, 2022

CASE NO(S).: OLT-21-001505

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

Applicant and Appellant: Lloyd Monteith

Subject: Minor Variance

Property Address/Description: 5749 Woodhull Road

Variance from By-law: Middlesex Centre Comprehensive Zoning By-law 2005-005

Municipality: Municipality of Middlesex Centre

Municipal File No.: A-18-2021

OLT Lead Case No.: OLT-21-001505

OLT Case No.: OLT-21-001505

OLT Case Name: Monteith v. Middlesex Centre (Municipality)

Heard: February 11, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Lloyd Monteith (“Applicant” or “Appellant”)

Barry C. Fick

Municipality of Middlesex Centre (“Municipality”)

Wayne Meagher

DECISION DELIVERED A. CORNACCHIA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is an appeal of the decision of the Committee of Adjustment (“Committee”) to deny a minor variance application for a proposed accessory structure to be located on the property municipally known as 5749 Woodhull Road, Middlesex Centre (“Subject Property”).

1. BACKGROUND

2The Subject Property is located in the Municipality of Middlesex Centre (“Municipality”) and is designated as an Agricultural Area in the Official Plan (“OP”) for the County of Middlesex (“County”) and as Agricultural in the Municipal OP. It is zoned “Agricultural (A1) Zone” in the Middlesex Centre Comprehensive Zoning By-law No. 2005-005 (“ZB”)

3The Applicant submitted a minor variance application on April 23, 2021 to permit the construction of a detached, silo shaped, accessory structure in the vicinity of a two storey detached dwelling on the Subject Property which exceeds the maximum height restrictions of the ZB (“Proposed Accessory Structure”). The Proposed Accessory Structure is designed to be an accessory to the two-storey residence on the property and will not be used as part of the agricultural operations. It is designed as a three (3)-storey, silo like structure with a flat top roof. The first two storeys will have a height of 15.5 feet each and be devoted to storage of collectibles. The third storey will be 8 feet high and include extensive observation windows to permit the owner to view his land.

4The Proposed Accessory Structure changed in the context of the discussions between the planner and the owner of the Subject Property. Initially it was to be a shorter structure in the front yard of the property. The final proposal was for a structure in the rear of the existing single detached dwelling having a height of 13.4 metres (“m”) (44 feet), which exceeds the height restrictions in the ZB of 6.5 m.

5After reviewing the Minor Variance application, Dan FitzGerald a Planner with the Municipality prepared a report dated September 22, 2021 for the Committee recommending against the approval of the Minor Variance (“Municipality Planning Report”) since it was not minor, was not desirable for the appropriate use of the Subject Property and did not maintain the intent and purpose of the zoning by-law. Based on this report, the Committee denied the Minor Variance on September 22, 2021. On October 6, 2021, Applicant filed an appeal of the Committee decision with the Ontario Land Tribunal.

2. Hearing and Witness

6A hearing was held on February 11, 2022, the Applicant did not call any witnesses or present the Applicant as a witness. The Applicant was having trouble joining the hearing and the Tribunal stood down to permit him to address his technical difficulties with a representative from the Tribunal technical support team. Mr. Fick advised the Tribunal that his client’s rotary phone did not allow him to join the virtual hearing and requested that we proceed with the hearing without the presence of the Applicant. The Applicant’s therefore presented no evidence in support of their application despite the onus to do so in a hearing de novo.

The Municipality called Daniel FitzGerald as an Expert Planning Witness. He was properly qualified as an expert witness and the Tribunal found his evidence to be credible and uncontradicted. Mr. FitzGerald answered all questions posed during his examination in chief and cross-examination in a clear, concise, and forthright manner. His cross-examination did not cause Tribunal to doubt his evidence.

3. APPEAL AND APPLICABLE TESTS

7This appeal is a hearing de novo of the Minor Variance application. The Tribunal is required to hear the evidence presented both for and against the Minor Variance and decide whether to allow the Minor Variance based on the applicable legal tests. The Tribunal must have regard to the decision of the Committee but is not bound by it.

8In making its decision, the Tribunal is required to assess the Minor Variance based on the four tests set out in s. 45(1) of the Planning Act (“Act”). The Tribunal heard the planning evidence and the submissions from the parties on each of these tests.

A. Does the variance maintain the general intent and purpose of the Official Plan (“OP”)?

9The planning evidence identified that the Subject Property is designated as Agricultural Area under the County OP and Agriculture under the Municipal OP. Agricultural areas are to be used predominantly for agricultural and agriculture related uses including a principal farm dwelling and related structures. Since the Proposed Accessory Structure is intended to be used as an accessory building to the principal farm dwelling, it is consistent with and meets the intent and purpose of both the applicable OPs.

B. Does the variance maintain the general intent and purpose of the zoning by-law?

10According to the planning evidence, the Subject Property is zoned “Agricultural (A1) Zone” under the ZB. This zoning permits residential use and accessory uses to the dwelling. The definition of accessory use in section 2.0 of the ZB identifies that it is a use that is subordinate to the main use, building or structure, located on the same lot, and not used for human habitation unless permitted by the ZB.

11Section 4.1 of the ZB provides for height and site coverage restrictions for accessory buildings. Section 4.1 (c) (iii) states that no buildings or structures accessory to a dwelling:

iii) shall exceed 6.5 metres (21.3 feet) in height in any Agricultural, Restricted Agricultural or Surplus Residence Zone.

12Section 4.1 (b) states that accessory buildings shall not exceed the lesser of 3% of the lot coverage in any Agriculturally or Residential Agricultural Zone or the following:

a) 165 square meters of gross floor area for accessory buildings located on a lot with an area greater than 5,000 square metres (1.25 acres).

13The intent of the provisions regarding limitations in the height and size of accessory buildings is to ensure that the accessory building remains smaller and thereby subordinate to the principal farm dwelling on the lands.

14Single detached dwellings on the Subject Property are restricted under the ZB to a height of 12.0 m (39.4 feet). The planning evidence confirmed that the ZB constraints on height and size for dwellings and accessory structures to dwellings do not apply for structures installed on the property for agricultural purposes.

15Counsel for the Applicant argued the accessory use does not detract from the use of the dwelling for residential purposes and that the Tribunal should not be focused on height as the sole determining factor the minor variance being in keeping with the intent and purpose of the ZB. He pointed to the land area to be occupied by the Proposed Accessory Structure being less than that occupied by the residence. The Tribunal was not convinced by this argument given the clear discrepancy between the ZB’s extensive regulation of residential buildings and accessory structures related to the dwelling and the absence of such regulation for structures to be used for agriculture. Height is an important factor in determining whether a building is an accessory to the dwelling on the Subject Property. The Proposed Accessory Structure exceeds both the maximum limits for the residence and is more than twice the permissible height for an accessory building for residential purposes. If it were allowed the Proposed Accessory Structure would become predominant over dwelling on the property and not an accessory to it.

16Counsel for the Appellant also identified that the Proposed Accessory Structure was of a similar size and appearance to the silo on the Subject Property. The silo is used for agricultural purposes and the Proposed Accessory Structure will not be used for that purpose. The regulatory regimes for residential and agricultural purposes differ for good reason. Agricultural buildings are not limited by the ZB while residential buildings and accessories to that use are controlled. Agricultural needs are allowed a broad latitude due to the diversity of requirements of agricultural operations.

17The Tribunal finds that the Proposed Accessory Structure does not meet the intent and purpose of the ZB since allowing it would result in a residential accessory structure which predominates over the residence due to its excessive height as confirmed by the planning evidence.

C. Is the variance minor?

18The planning evidence confirmed that the proposed variance is not minor in nature. The Proposed Accessory Structure, having a height of 13.4 m would exceed the maximum permitted height of the principal residence structure under the ZB by 1.4 m and would be over twice the maximum height permitted for Accessory Structures under the ZB (6.5 metres). Furthermore, a planning staff survey of the area identifies Accessory Structures for residential uses in the area are limited to one storey.

19Based on the planning evidence, the Tribunal finds that the Proposed Accessory Structure is not minor in nature.

D. Is the variance desirable for the appropriate development or use of the land, building or structure?

20The planning evidence confirmed that the Proposed Accessory Structure is not an appropriate and desirable use of the land since it does not meet the intent and purpose of the ZB, does not meet the character of the residential neighbourhood where accessory structures for residential purposes are limited to one storey, and is not minor.

21In summary, the application for a minor variance fails three of the four tests under s. 45(1) of the Act and this appeal must be dismissed. The proposed variance is not minor, desirable for the use and development of the Subject Property and does not maintain the general intent and purpose of the zoning by-law.

ORDER

22THE TRIBUNAL ORDERS that the appeal is dismissed.

“A. Cornacchia”

A. CORNACCHIA 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.