Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 25, 2022 CASE NO(S).: OLT-21-001202

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

Applicant and Appellant: Michele-Elise Burnett-Reich Subject: Minor Variance Variance from By-law No.: 034-2014 Property Address/Description: 11845 Lakeshore Road Municipality: Township of Wainfleet Municipal File No.: A09/2021W OLT Case No.: OLT-21-001202 OLT Lead Case No.: OLT-21-001202 OLT Case Name: Burnett-Reich v. Wainfleet (Township)

Heard: March 18, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Michele-Elise Burnett-Reich	Sara J. Premi
Township of Wainfleet	No one appeared

DECISION DELIVERED BY S. Braun AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Michele-Elise Burnett-Reich (“Appellant”) had begun construction on a shed located at the front of the property at 11845 Lakeshore Road (“subject property”) in the Township of Wainfleet (“Township”). The shed, being an accessory structure of 10 square meters or less in size, did not require a building permit. However, during construction, various deficiencies with the Township Zoning By-law No. 034-2014 (“ZBL”) were discovered. Construction was halted and the Appellant applied to the Township’s Committee of Adjustment (“Committee”) for minor variances to bring the structure into conformity.

2The application sought relief as summarized in the chart below:

Section of By-law	By-law requirement	Application Request	Difference
s. 4.21 Table 2 Minimum front yard setback – accessory building	6 m	2.7 m	3.3 m
s. 4.21 Table 2 Minimum interior side yard setback – accessory building	1 m	0.6 m	0.4 m
Section 4.13 Setback from Street – Table 1 All Township Roads and Streets	10 m	9.21 m	0.79 m

3Although planning staff recommended approval of the variances at issue, the Committee refused the application for the following reasons: “The application is not consistent with the intent of the Zoning By-law. The decision is rendered having regard to the provisions of Section 45 of the Planning Act”. The foregoing decision is now the subject of the appeal before the Tribunal, brought pursuant to s. 45(12) of the Planning Act¹ (“Act”).

4Prior to the hearing, the Tribunal was advised that the Township did not intend to take a position on the appeal and would not be appearing. No individuals requested party or participant status.

SUBJECT PROPERTY AND SURROUNDING AREA

5The subject property is located in the Lakeshore Residential Area of the Township, which is predominantly made up of a mix of seasonal cottages and year-round residences on smaller lots. The subject property currently contains a single detached dwelling and the partially constructed non-conforming shed.

6To the north of the subject property is Lakeshore Road, across which are single detached dwellings on somewhat larger sized lots, as well as some agricultural lands. To the east and west are single detached dwellings. To the immediate south is the Lake Erie shoreline, which is important to note because, as a result of its proximity to the lake, the subject property is subject to specific policies, zoning provisions and regulations in relation to natural hazards, which is the reason the accessory structure was sited at the front of the property.

LEGISLATIVE FRAMEWORK

7An appeal pursuant to s. 45 of the Act is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely that the requested variance:

(a) maintains the general intent and purpose of the official plan (“OP”);

(b) maintains the general intent and purpose of the ZBL;

(c) is minor in nature; and

(d) is desirable for the appropriate development or use of the land, building or structure.

8In addition, s. 3(5) of the Act requires the Tribunal’s decision be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the applicable Growth Plan which, in this instance, is A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”).

9The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as for the decision of the Committee and the information considered in the course of making its decision, as set out in s. 2.1(1) of the Act.

PLANNING EVIDENCE

10The Appellant called Mary Lou Tanner, a Registered Professional Planner qualified by the Tribunal to provide land use planning opinion evidence. Ms. Tanner delivered a detailed contextual and planning rationale to support the variances. In addition, Sarah Ivins, Planner/Deputy Clerk for the Township appeared and gave evidence under summons. Ms. Ivins, who is currently working toward her designation as a Registered Professional Planner, was qualified to provide land use opinion evidence as she possesses relevant education and experience in land use planning; authored the staff report recommending approval of the variances at issue; and has previously been qualified to provide land use planning opinion evidence before the Local Planning Appeal Tribunal and the Ontario Municipal Board.

11Ms. Tanner provided an overview of the applicable designations and zoning. The subject property is designated Lakeshore Residential and Natural Heritage System in Schedule A of the Township’s Official Plan (“TOP”) and, in the Township ZBL, is zoned Residential Lakeshore, Hazard Overlay and Environmental Conservation Area (“ECA”). Hazard Overlay relates to hazards associated with watercourses (in this case, the Lake Erie shoreline) and ECA relates to floodplain outside of the Hazard Overlay. Building is prohibited in both zones, which cover the majority of the subject property and are regulated by the Niagara Peninsula Conservation Authority (“NPCA”). Ms. Tanner testified that the NPCA confirmed there was “no path to approval for siting of the structure in the rear yard”. As such, in order to meet the OP and PPS policies, the shed could not be located anywhere other than in the front yard.

Provincial Interests, PPS and GP

12With reference to all of the foregoing, Ms. Tanner opined the variances have regard to matters of Provincial interest in s. 2 of the Act, including protection of ecological systems including natural areas, features and functions; orderly development of safe and healthy communities; protection of public health and safety; and the appropriate location for growth and development.

13She further opined the variances are consistent with PPS policies, including but not limited to, s. 3.3.1 - directing development outside of hazardous lands adjacent to the shorelines of the Great Lakes-St. Lawrence River System and large inland lakes which are impacted by flooding hazards, erosion hazards and/or dynamic beach hazards. With respect to the GP, she noted the structure is accessory to the principal residential dwelling and is compatible with surrounding land uses (which include typically reduced front yard setbacks as a result of the historic pattern of development in the area). As such, with reference to s. 2.2.9.3, which addresses development outside of settlement areas on rural lands such as in this instance, she opined the variances conform/do not conflict with the GP.

Four Tests

14Ms. Tanner took the Tribunal through a detailed evaluation of each of the three requested variances against the four tests in s. 45(1). Since much of the analysis overlaps, the Tribunal briefly summarizes Ms. Tanner’s opinion as follows:

15Neither the Niagara Region Official Plan (“ROP”) nor the TOP include policies specific to accessory structures, which are addressed within the ZBL. For the purposes of this application, the most applicable policies in both relate to permitted uses and ensuring that buildings are sited outside of the shoreline and regulated area. In Ms. Tanner’s view, all three variances conform to both the ROP and the TOP, as the existing single detached dwelling is a permitted use, with the shed being accessory to that dwelling having been deliberately sited in the front yard outside of the ECA and Hazard areas. In Ms. Tanner’s view, the requested variances maintain the general intent and purpose of both the TOP and the ROP.

16The requested variances are desirable for the appropriate development of the land, given the importance of locating development outside of regulated Hazard and ECAs. With reference to building constraints due to proximity to the lake, Ms. Tanner testified that there are numerous properties in the Lakeshore Residential community with residences located close to the road and sheds located in the front yard. She further explained the appropriateness of the requested variances in this particular instance, noting that the siting of the structure within the front yard was further constrained by the location of the subject property’s septic system, over which there can be no building.

17Ms. Tanner further opined all three requested variances maintain the general intent and purpose of the ZBL. She explained front yard setbacks and the setbacks from the street are intended to ensure structures do not obstruct driver sightlines, thereby negatively affecting the safe movement of vehicles. She noted the Township’s Operations Department had no concerns in this regard and opined the requested variances allowing the shed to be sited as proposed maintain the purpose of the foregoing ZBL provisions. Ms. Tanner explained that the side yard setback is intended to ensure there is sufficient access at the side lot line to allow fencing and maintenance of accessory structures without having to go onto neighbouring properties. In her view, the purpose of the side yard setback is maintained because siting the structure as proposed leaves sufficient space at the side lot line for intended purposes.

18All three requested variances are minor, both in the amount of relief requested from each required setback and the potential for adverse impacts. Ms. Tanner explained that properties in this area which are located along the Lake Erie shoreline have similar, if not identical, building constraints and, as such, the siting of the accessory structure is consistent with the character of the immediate and surrounding area having both residences and accessory structures located closer to the road. She reiterated that the Township’s Operations Department had no concerns with adverse impacts on sightlines to and from the road. Finally, Ms. Tanner noted that the NPCA had no concerns given the structure is proposed to be sited outside of regulated ECA and Hazard areas.

19Ms. Ivins, who authored the report to the Committee recommending approval of the variances, concurred with the entirety of Ms. Tanner’s oral evidence as well as the content of Ms. Tanner’s witness statement. Overall, both Mmes. Tanner and Ivins testified that all three of the requested variances represent good planning; satisfy the four tests in s. 45(1) of the Act; are consistent with the PPS; conform to the GP, conform to both the ROP and the TOP; and satisfy all applicable NPCA policies and regulations.

20Ms. Ivins spoke directly to public comments received in response to the application, which included one letter of opposition from an adjacent property owner. The letter raised one relevant planning related issue, which Ms. Ivins summarized as “concern over the location and scale” of the accessory structure. She explained, with reference to a photograph at page 3 of her report (Exhibit 1, Tab 4), that the placement and scale of the accessory structure had been given due consideration in the context of other development in the immediate area, which includes a number of accessory buildings and main dwellings, which are sited close to Lakeshore Road as a result of the constraints upon building posed by the local area context.

21In Ms. Ivins’ opinion, the location and scale of the accessory building will not result in undue adverse impacts on sightlines in relation to the property of the concerned resident. Ms. Ivins also noted the Township’s Operations Department raised no concerns in relation to the structure impeding sightlines and/or posing risks to vehicular safety.

FINDINGS

22On the uncontradicted land use planning evidence and opinions of both Mmes. Tanner and Ivins, the Tribunal is satisfied that all three requested variances are minor in nature, desirable for the appropriate development of the land and maintain the general intent and purpose of the OP and ZBL. The Tribunal is further satisfied that the variances have appropriate regard for matters of Provincial interest; are consistent with the PPS; conform to the GP; and overall, represent good planning in the public interest.

23Regard has been given to the decision of the Committee and the information considered by it in the course of making its decision. Upon the evidence of Ms. Ivins, the Tribunal is satisfied that the concerns raised by the adjacent property owner were given appropriate consideration and that the variances will not result in undue adverse impacts to that property owner or to the area in general.

ORDER

24The Tribunal orders that the appeal is allowed and the variances to Zoning By-law No. 034-2014 are authorized.

“S. Braun”

s. braun

MEMBER

Ontario Land Tribunal

Website: www.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.

Footnotes

1. 1R.S.O. 1990, c. P. 13, as amended.