Ontario Land Tribunal
Tribunal ontarien de l'aménagement du territoire
Issue Date: February 25, 2022
Case No(s).: OLT-21-001362
Proceeding Commenced Under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicants: James Anthony and Mary Elizabeth Horbul
Appellant: City of Timmins
Subject: Minor Variance
Property Address/Description: 538 Quirion Road (German Township, Con 6 S PT Lot 7)
Variance from By-law: By-law 2011-7100
Municipality: City of Timmins
Municipal File No.: A-30-21
OLT Lead Case No.: OLT-21-001362
OLT Case No.: OLT-21-001362
OLT Case Name: Timmins v. Timmins (City)
Heard: January 21, 2022 via Video Hearing
Appearances
| Parties | Counsel/Representative* |
|---|---|
| James Anthony and Mary Elizabeth Horbul ("Applicants") | Self-represented |
| City of Timmins ("City" or "Appellant") | David Neligan* |
Decision Delivered by A. Cornacchia and Order of the Tribunal
Background
1This is an appeal by the City of the decision of the Committee of Adjustment ("Committee") to allow a minor variance application by the Applicants for their property municipally known as 538 Quirion Road, in the City ("Subject Property") that would permit a seasonal trailer. The Subject Property is located on Barber's Bay and a seasonal cottage and a seasonal trailer are currently found on the property.
2The Ministry of the Environment issued notice to the City in 2006 that Barber's Bay is a lake that is at capacity for development. Along with many other property owners on Barber's Bay, the Applicants received a notice letter dated June 4, 2021 from the Office of the City Clerk requiring removal of the trailer by July 31, 2021 ("Violation Notice"). The applicable Zoning By-law No. 2011-7100 ("ZB") only permits one dwelling per lot.
3In response to the Violation Notice, the Applicants applied for a minor variance to permit a park model trailer/travel trailer as a secondary dwelling on the Subject Property zoned as a RD-WN ("Minor Variance").
4After reviewing the Minor Variance application, the City's Manager of Planning prepared a report dated July 30, 2021 (revised August 9, 2021) for the Committee recommending against the approval of the Minor Variance ("City Planning Report") since it did not meet the general intent and purpose of the ZB. Subsection 5.9 (1)(d)(iii) ZB requires a rezoning of the property to permit more than one dwelling on a lot.
Committee Decision
5The Committee decided to allow the Minor Variance in its decision dated August 9, 2021, with conditions, despite the recommendation against it in the City Planning Report ("Permission"). On August 26, 2021, the City filed an appeal of the Permission decision with the Ontario Land Tribunal.
Hearing and Witnesses
6A hearing was held and the City called Stefan Szczerbak as an expert planning witness. He was properly qualified as an expert witness and the Tribunal found his evidence to be credible. Mr. Szczerbak stood up well in his cross-examination and answered all questions posed during his examination in chief and cross-examination in a clear, concise and forthright manner.
7The Applicants did not call any planning witnesses but presented their own evidence in support of the Minor Variance. The Tribunal found the Applicants to be serious people who were very concerned with doing the right thing. They are motivated by family reasons to secure the Minor Variance so that the trailer can continue to be used to accommodate their son's family during weekend visits.
Appeal and Applicable Tests
8This 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, to decide whether to allow the Minor Variance based on this evidence and by applying the applicable legal tests. The Tribunal is required to have regard to the decision of the Committee but is not bound by it. The Tribunal does not find the Committee's decision to be helpful in its deliberations since no reasons were included.
9In 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. The Tribunal heard submissions from the parties on each of these tests.
A. Does the variance maintain the general intent and purpose of the Official Plan ("OP")?
10The planning evidence made it clear that the Subject Property is located in a Resource Development Area of the OP. These areas are not identified for intensification by the OP. Section 3.4.3 of the OP states:
3.4.3 Waterfront Development
Waterfront development in the Resource Development Area, including seasonal and permanent residential uses and commercial uses, will only be permitted where there is demonstrated capacity of the water body to accommodate the intended development and in compliance with Section 3.4.5 – Planning Principles. More specifically, development on lakes identified to be near or at capacity or identified to be a cold water lake trout lake may only be permitted where an impact report indicates that such development will not result in a decline in the water quantity or quality of the lake or water body (i.e. through increased phosphorus loading enrichment, a reduction in oxygen levels or water taking), except on existing lots of record.
11The OP places the onus on the developer to deliver an appropriate study to prove that there is demonstrated capacity in a water body to accommodate the development. The Ministry of Environment has identified Barber's Bay, where the Subject Property is located, as being "at capacity". Clearly, no further development should be permitted unless it can be supported by appropriate studies.
12The Applicants identified that their family only visits during the weekend and brought forward data from community water testing and anecdotal evidence that residents were drinking water from the lake to support their application. Unfortunately, the Tribunal did not find the water quality evidence to be reliable since no evidence was presented that the samples were appropriately taken, tested and comprehensive results were not presented by an expert in the field of water quality. The Tribunal finds that this evidence does not support the Applicants' position that the lake is able to accommodate the additional load caused by a second dwelling on the Subject Property.
13Based on the planning evidence, the Tribunal finds that the Minor Variance does not meet the requirements of the OP, which seeks to protect the biological capacity of lakes by controlling development.
B. Does the variance maintain the general intent and purpose of the zoning by-law ("ZB")?
14According to the planning evidence, the ZB is the key instrument for implementing the OP Policies regarding waterfront development. It is designed to prevent the over-development of properties to the possible detriment of the environment.
15The Subject Property is zoned Waterfront Neighbourhood Zone (RD-WN). The ZB does not permit Accessory Dwellings in the RD-WN Zone. Both Park Model Trailers and "travel trailers" (a term not defined in the Zoning By-law) are considered to be Accessory Dwellings. Subclause 5.9(1)(d)(iii) of the ZB limits one dwelling to each lot in the RD-WN Zone unless the lot is rezoned to permit more than one dwelling.
16Rezoning applications are considered by Council of the Town and go through a more rigorous Zoning By-law Amendment application process. The City requires that an Applicant submit detailed planning studies to support any new developments in the RD-WN Zone which are not permitted as of right by the ZB. This allows the City to properly assess the appropriateness and impact of a proposal on a particular property, the environment and the neighbourhood generally.
17Based on the planning evidence, the Tribunal finds that permitting an additional dwelling on the lot without a rezoning application does not meet the general intent and purpose of the Zoning By-law.
C. Is the variance desirable for the appropriate development or use of the land, building or structure?
18The planning evidence confirmed that permitting the proposed Minor Variance would result in an intensification on the Subject Property and is not in keeping with the Official Plan, Zoning By-law or the recommendations of the Ministry of Environment. Based on the planning evidence, the Tribunal finds that permitting the trailer without a careful examination and study of the environmental and other impacts, is not supported by the necessary analysis and is undesirable for the appropriate development of the Subject Property.
D. Is the variance minor?
19The planning evidence confirmed that the Minor Variance would permit two dwellings on the Subject Property allowing more people to inhabit it at the same time. Although the Applicants brought forward evidence that they take toilet conservation measures to reduce their collective environmental impact, any Permission relates to the property and not the owners. The Permission follows with the land and would permit subsequent owners, who may not be as environmentally responsible to locate a trailer on the property. This would increase the strain on sanitation services and water use in an area where environmental capacity concerns have already been identified. Based on the planning evidence, the Tribunal finds that the Subject Property will experience an increased intensity of use by allowing a second dwelling, which cannot be considered minor in nature.
20The Tribunal finds that the Minor Variance is not supported by the evidence and does not satisfy the legal tests for a minor variance and thus the Committee decision should not stand. The Provincial Policy Statement identifies water quality as an important policy consideration. This theme is carried forward by the OP and the ZB, which limit development to one dwelling per lot unless appropriate studies specifically related to whether the lake is able to accommodate the additional load of a trailer are completed. Although the Tribunal is sympathetic to the Applicants, as they confirmed both in their direct evidence and cross-examination, they do have the alternative of seeking a zoning by-law amendment to secure authorization for their trailer.
Order
21THE TRIBUNAL ORDERS that the appeal is allowed and the variance to By-law No. 2011-7100 of the City of Timmins is not authorized.
"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.