Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 15, 2022
CASE NO(S).: OLT-21-001553
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: Jim and Robbie Magahey
Appellant: Corporation of the Townships of Minden Hills
Subject: Minor Variance
Property Address/Description: 1018 Pottery Drive
Variance from By-law: Zoning Bylaw 06-10
Municipality: Township of Minden Hills
Municipal File No.: PLMV2021045
OLT Lead Case No.: OLT-21-001553
OLT Case No.: OLT-21-001553
OLT Case Name: Minden Hills v. Minden Hills (Township)
Heard: February 7, 2022 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Jim and Robbie Magahey | Self-represented |
| Town of Minden Hills | John Ewart* |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. deBOER AND M.A. SILLS ON FEBRUARY 7, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was the appeal by the Township of Minden Hills (the “Appellant”) concerning the decision of the Township of Minden Hills (the “Township”) Committee of Adjustment (the “COA”) to refuse a minor variance application for the property owned by Jim and Robbie Magahey (the “Applicant”) and located at 1018 Pottery Drive.
2The Subject Property (the “SP”) is located on Mountain Lake and has access from Highway 35 via Pottery Drive. Overall, the SP comprises an area of 3,275.4 square metres (m2) and has 37.8 metres (“m”) of shoreline frontage. The property is currently designated as “Waterfront” in the Township’s Official Plan (“TOP”) and is zoned “Shoreline Residential” (SR) according to By-law No. 06-10.
3Currently the property is occupied by a two-storey dwelling covering a ground floor area of 187.3 m2. The building also has a water yard setback of 9.7 m and a north yard setback of 1.5 m. There is also a small workshop, on-water boathouse and a woodshed currently on the property. The existing lot coverage is 7%.
Context of the Application
4The Applicant sought approval at the time of the original application for minor variances consisting of a larger main dwelling that would have a ground floor area of 207.4 m2 (an increase of 20.1 m2). Other variances that were requested included an increase in the current water yard from 9.7 m to 10.6 m. In addition, a new 1.5 storey garage with a ground floor coverage of 183.24 m2 was also requested.
5The original application was filed on June 2, 2021, and was before the COA on July 26, 2021. The COA deferred the application due to revised drawings that were submitted by the Applicant immediately prior to the meeting and needed further review. The amended application returned to the COA on August 30, 2021. The COA requested and received from the Applicant further clarification on the outstanding information, which included certain amendments to their development plans. The application was tabled to the COA meeting on September 27, 2021. At the September 27, 2021, COA meeting, a motion for approval was brought forward which resulted in a 2-2 tie. The tie vote resulted in the denial of the application.
6As a result of the lost motion, the Council of the Township of Minden resolved to appeal the decision of the COA to the Ontario Land Tribunal under s. 45(12) of the Planning Act on October 28, 2021.
Planning Evidence
7On the day of the hearing, Counsel for the Township sought to call one expert witness and requested two exhibits be put into evidence. The Joint Document Book was marked Exhibit 1 and the Witness Statement of Darryl Tighe was marked Exhibit 2.
8The Township’s Planning Consultant, Darryl Tighe, is a Registered Professional Planner and a Member of the Ontario Professional Planners Institute with more than 38 years of practical experience. Mr. Tighe was affirmed and qualified as a witness to give expert opinion in the area of land use planning.
9In his Witness Statement, Mr. Tighe gave evidence of the SP and of the variances sought through the application process. In his witness statement, Mr. Tighe confirmed the variances being sought are as follows:
(1) From Section 4.8.4.iv to permit a front yard setback of 10.6 m for the proposed dwelling and increased height of 0.6 m whereas no increased development within 15 m of the High Water Mark is allowed.
(2) From Section 4.8.4.iv to permit a front yard setback of 7.59 m for a proposed cantilevered deck, whereas no increase in the extent of non-compliance is permitted and further development with 15 m of the High Water Mark setback is otherwise also not permitted.
(3) From Section 4.1.11 to permit a 1.5 storey garage with a side yard setback of 1.3 m, whereas otherwise only a one-storey garage is permitted with a side yard setback of 2 m.
(4) From Section 4.9.1 to permit construction on an existing undersized lot, where additional relief is required from Zoning By-Law 06-10.
The Provincial Policy Statement (2020) (the “PPS”)
10As for the PPS, Mr. Tighe stated the submitted application falls under section 1.1.5 “Rural Lands in Municipalities”. It is his opinion that the application is consistent with the specific policy below of the PPS:
(1) The application conforms to policy 1.1.5.2 (b) as the SP is apart of the rural lands located within the Township and is permitted to be used as a resource-based recreational use.
The Four Tests of a Minor Variance
Is the application minor in nature?
11Mr. Tighe stated that while the existing dwelling is a legal non-conforming structure, the new structure will not impede on the High Water Mark any further than the existing structure. With respect to the garage, only one portion of the garage requires relief from the zoning provision and is needing the requested variance due to site restrictions. The garage will be located outside of the 23 m setback to the High Water Mark. The additional half-storey on the garage is intended for storage only and will not be used for any living quarters. Mr. Tighe opined that due to this, the variances meet the requirement of being minor in nature.
Is the application desirable for the appropriate use of the land, building or structure?
12Mr. Tighe stated that the SP is zoned Shoreline Residential (SR) and designated as Waterfront and both are intended for residential development. The variances will permit the reconstruction of the existing dwelling, an extension to the waterfront deck and construction of a 1.5 storey garage. Alternative locations for the reconstruction are limited and the proposed dwelling will not be closer to the High Water Mark. While the deck will be 0.91 m closer to the High Water Mark, the effect of cantilevering the deck will not require any additional footings that would encroach on the High Water Mark. The garage will enhance the functionality of the property and provide additional storage space. As such, Mr. Tighe deems the application is desirable for the appropriate use of the lands.
Does the application maintain the general intent and purpose of the Zoning By-Law?
13Mr. Tighe stated that the proposed development meets the majority of the Zoning By-law and its provisions. These provisions ensure that structures will not cause adverse environmental impacts on the nearby waterbody. It is Mr. Tighe’s opinion that the proposed dwelling will not further encroach the shoreline and the deck expansion does not need any further footings or support. The side setback for the garage is not anticipated to have any negative impacts to the neighbouring property. The total purposed lot coverage is 12%. In his opinion, this application upholds the intent and purpose of the Zoning By-law.
Does the application maintain the general intent of the Official Plan?
14The SP is designated Waterfront on Schedule “A” of the TOP. Permitted uses in the Waterfront designation include recreation-based uses limited to a singe detached dwelling. With respect to the shoreline, policies in the TOP encourage the protection of the shoreline and to maintain an appropriate balance between natural shoreline and built form within the waterfront. The TOP also states a setback within the 23 m High Water Mark may be permitted if it is not physically possible due to terrain or lot depth features. Removal of vegetation along the shoreline would not be required as a result of this application. Therefore, it upholds the intent of the Official Plan.
15Mr. Tighe gave his professional opinion that the application meets the four tests of a minor variance and conforms with all relevant provincial legislation and policies. The application also conforms with the upper tier land use policies. The application complies with the TOP and Zoning By-Law and represents good planning.
Analysis and Disposition
16Based on the uncontroverted expert land use planning opinion of Mr. Tighe, the Tribunal finds that the variances sought individually and collectively meet the tests established in s. 45(1) of the Planning Act.
17The Tribunal finds that the minor variances are consistent with the policies of the PPS and maintain the general intent of the TOP and Zoning By-Law No. 06-10. The Tribunal further finds that the variances being sought are minor in nature and will facilitate development that is desirable and appropriate for the use of the subject lands.
ORDER
18The Tribunal Orders that the appeal is allowed and the variances to By-law No. 06-10 are authorized subject to the following conditions:
Conditions:
(1) That approval of the minor variances shall only relate to the dwelling, deck and detached garage.
(2) That the upper level of the garage be permitted for storage only.
(3) That construction shall proceed substantially in accordance with the site plan submitted to the Township on September 17, 2021, and put before the Committee on September 27, 2021.
(4) That the building permit, which is to remain in good standing, be applied for within twelve (12) months of the approval of this application following submission to the building department of the appropriate application, fee and supporting information as required by the Chief Building Official.
“S. deBoer”
S. deBOER MEMBER
“M.A. Sills”
M.A. SILLS VICE-CHAIR
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.