Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 19, 2022

CASE NO(S).: OLT-21-001339

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

Applicants and Appellants: Kristine and Gino Dela Cruz

Subject: Minor Variance

Property Address/Description: 460 Line 2 Road

Variance from By-law: 4316-09

Municipality: Town of Niagara-on-the-Lake

Municipal File No.: A-31/21

OLT Lead Case No.: OLT-21-001339

OLT Case No.: OLT-21-001339

OLT Case Name: Dela Cruz v. Niagara-on-the-Lake (Town)

Heard: January 13, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Kristine and Gino Dela Cruz

J. Patrick Maloney

Town of Niagara-on-the-Lake

Karen Shedden

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BRAUN ON JANUARY 13, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The parties have reached a settlement in the matter of an appeal under s. 45(12) of the Planning Act [1] (“Act”) by Kristine and Gino Dela Cruz (“Appellants”) from the decision of the Town of Niagara-on-the-Lake (“Town”) to refuse their application for a minor variance in relation to the property at 460 Line 2 Road, (“subject property”). The Appellants wish to add cottage rental as a permitted use and as such, require relief from Zoning By-law No. 4316-09 (“ZBL”), as cottage rental is not currently a permitted use in the Residential Development (RD) zone.

2Although numerous public comments were received in opposition to the application, no objections or concerns were received from Town Departments and external agencies in response to the application and a detailed planning report prepared by the Town’s Planning Staff recommended the application be approved. Notwithstanding the foregoing, the Committee of Adjustment (“Committee”) refused the application, reasoning that it did not meet the four tests.

3Prior to the hearing, the Tribunal was informed that the parties had worked diligently to arrive at an agreement that resolves the appeal. Accordingly, they jointly requested an Order approving the requested minor variance, presented executed Minutes of Settlement (Exhibit 3) and called expert land use planning evidence in support of the settlement.

PARTICIPANT REQUESTS

4The Tribunal received requests for Participant status and written statements from Tanya Rice (Exhibit 1) and Deborah Rabey (Exhibit 2), both of whom reside at the properties adjacent to the subject property and both of whom oppose the requested variance. They noted the area is a developed residential area which is not located near a lake or beach, as one might expect for a cottage rental.

5Ms. Rice also expressed concern that the single detached dwelling has four bedrooms, as noted in attached real estate listings for the subject property, whereas the ZBL in s. 6.10 Cottage Rental specifies that where cottage rental is a permitted use, it shall only be permitted in a single detached dwelling and shall not contain more than three bedrooms.

6Ms. Rabey raised concerns in relation to negative impacts upon her ability to enjoy her property in the event of approval of the requested variance, including noise and smoke from recreational fires.

7The Tribunal granted Ms. Rice and Ms. Rabey Participant status without objection from the parties.

LEGISLATIVE FRAMEWORK

8An appeal pursuant to s. 45 of the Act is a hearing de novo and the Appellants bear the onus of demonstrating that the four tests in s. 45(1) have been met namely, that the variance sought:

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

b) maintains the general intent and purpose of the zoning by-law (“ZBL”);

c) is desirable for the appropriate development or use of the land, building or structure; and

d) is minor in nature.

9Additionally, the variance must be consistent with the Provincial Policy Statement (“PPS”) and conform to any applicable Provincial plan. In this instance, the applicable plan is A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (“GP”). The Tribunal must also have regard to matters of Provincial interest and to the decision made by the Committee, as well as the information and material considered by it in the course of making its decision.

PLANNING EVIDENCE

10The Tribunal heard testimony in support of the settlement from Mark Iamarino, a registered professional planner and a member of the Canadian Institute of Planners, duly qualified to provide expert opinion evidence in the field of land use planning. He provided a detailed contextual and land use planning rationale to support the settlement and reviewed the proposed minor variance against the relevant legislative framework.

11Mr. Iamarino described the subject property as being located within the Virgil Urban Area of the Town on the north side of Line 2 Road and containing a single detached dwelling with a