Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 04, 2022

CASE NO(S).: OLT-21-001785

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

Applicant: Trevor Higgins and Emily Mosher

Appellant: Helen Long

Subject: Minor Variance

Property Address/Description: Horseshoe Lane

Variance from By-law: By-law No. 2004-035

Municipality: Municipality of Hastings Highlands

Municipal File No.: A-20-2021

OLT Lead Case No.: OLT-21-001785

OLT Case No.: OLT-21-001785

OLT Case Name: Long v. Hastings Highlands (Municipality)

Heard: April 8, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel*/Representative
Helen Long	Self-Represented
Trevor Higgins	Tony Fleming*
Emily Mosher

DECISION DELIVERED BY C. HARDY AND S. BOBKA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Trevor Higgins and Emily Mosher (together referred to as the “Applicant”) own vacant land located on Horseshoe Lane, Part of Lot 25, Concession 12, Parcel 5, in the Geographic Township of Monteagle (“Subject Property”). The Applicant applied to the Municipality of Hastings Highlands (“Municipality”) for a variance from Zoning By-law No. 2004-35, as amended (“ZBL”) to permit the construction of a new single-family dwelling on the Subject Property. Planning staff recommended approval of the variance and the Committee of Adjustment (“COA”) approved the Application, subject to conditions. Helen Long (“Appellant”) appealed the decision of the COA to the Tribunal (“Appeal”).

2Prior to the Hearing, the Municipality confirmed that it would not be calling a case in the Appeal, however, the Municipal Planner would attend the Appeal to provide evidence, on behalf of the Applicant.

SUBJECT PROPERTY

3The Subject Property is currently vacant and has a depth of approximately 41.05 metres. The Subject Property is constrained by the size of the lot, the topography and the distance to the water. One slope on the Subject Property limits the building envelope of the proposed dwelling.

4The Subject Property is designated Rural/Waterfront in the County of Hasting’s Official Plan (“OP”), which permits residential uses.

5The Subject Property is zoned Limited Service Residential (“LSR”) Zone in the ZBL, which permits single detached dwellings and an accessory building.

HEARING

6There were no requests for Party or Participant status at the Hearing.

7The Applicant attended the Appeal accompanied by Counsel and a land use planning expert. The Appellant was self-represented and did not call any experts or witnesses. The Tribunal provided the Appellant with a fulsome explanation of the hearing process. The Tribunal explained to the Appellant that it would render its decision based upon both evidence and argument, and provided an explanation of the difference between the two.

8In opposition to the Appeal, the Applicant primarily relied upon the testimony of John Jardine. Mr. Jardine is a professional land use planner employed by the Municipality, who was qualified by the Tribunal to provide expert land use planning evidence and the Tribunal received the benefit of his oral testimony. Mr. Jardine provided an executed Acknowledgement of Expert’s Duty.

9The evidence in support of the Appeal consisted of factual evidence put forward by the Appellant.

10The Tribunal received and marked the following documents as Exhibits to the Appeal:

• Exhibit 1 – Applicant’s Book of Documents
• Exhibit 2 – Applicant’s Supplementary Document Book
• Exhibit 3 – Applicant’s Visual Documents

11The Tribunal also had the Municipal Record available to it as forwarded by the Municipality, containing all of the information and documentation that were before the COA when the application was received, considered and decided.

12In the determination of this Appeal, it must be noted that pursuant to s. 45 of the Planning Act (“Act”), this is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act have been met, is on the Applicant.

13The Tribunal must evaluate the minor variance in the context of the following four tests under s. 45(1) of the Act:

a. Do they maintain the general intent and purpose of the ZBL? b. Do they maintain the general intent and purpose of the OP? c. Are they minor? d. Are they desirable for the appropriate development or use of the land?

14In addition, s. 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

Variances Requested and Background

15At the outset of the Appeal, the Applicant, through Mr. Jardine, requested an amendment to the application before the Tribunal. The original variance before the COA was to request relief from s. 5.9.2(i) of the ZBL. Mr. Jardine advised the Tribunal that in preparation for the Appeal, he concluded that the Applicant required additional relief from s. 5.9.2(iii) of the ZBL. Mr. Jardine opined that the amendment is minor and will not change any of the facts or issues before the Tribunal and consequently, pursuant to s. 45(18.1.1) of the Act, no notice is required.

16The Tribunal agreed with Mr. Jardine’s opinion that the amendment is minor and does not require notice. The additional relief requested is within the same section of the ZBL, as the original request, and the Tribunal determined that there would be no prejudice suffered by allowing the amendment to the application without notice.

17The Applicant is seeking relief from the following sections of the ZBL, which will be together referred to as the “Proposed Variances”:

S. 5.9.2 Notwithstanding anything in this By-law, no building, structure, or septic tank installation including the weeping tile field (‘no development’) shall be located:

(i) within 30 metres (98.4 ft.) of the highwater mark of a waterbody or permanent watercourse, notwithstanding that such body of water or watercourse is not shown on any schedule forming part of this By-law; or

(iii) within 15 metres (49.2 ft.) of the top of bank.

18If allowed, the Proposed Variances will facilitate the construction of a dwelling (11.12 metres x 10.135 metres) with irregularly shaped ground floor area of 1,159 square feet with an attached covered porch, an attached garage (4.344 metres x 7.392 metres) and an attached deck (11 metres x 2.13 metres). The proposed dwelling and deck will be built as close as 15.75 metres and 15 metres, respectively, to the highwater mark of Graphite Lake (“Proposed Development”).

19The original variance to s. 5.9.2(i) was supported by Planning staff and approved by the COA, with conditions. An Appeal was filed with this Tribunal by the Appellant.

20The original variance application filed by the Applicant sought relief from both s. 5.9.2 (i), described above, and relief from s. 8.3(c)(i), which maintains that a natural vegetative buffer strip that is 15 metres in width shall be maintained in the LSR Zone. The Applicant originally proposed that the deck be constructed as close as 11.303 metres to the highwater mark of Graphite Lake and as close as 14.994 metres to the front lot line, which was within 30 metres of the highwater mark and within the 15-metre vegetative buffer.

21The COA considered the original variance application on September 16, 2021. The COA deferred the original variance application to allow the Applicant an opportunity to consider a different site and design plan.

22On November 11, 2021, the COA considered the variance to s. 5.9.2(i). The Applicant relocated the Proposed Development further back from the highwater mark so as not to encroach on the natural vegetative buffer. The result of the relocation is that the Applicant no longer requires relief from s. 8.3(c)(i) as no part of the Proposed Development will be located within the 15-metre vegetative buffer. The COA approved the variance to s. 5.9.2(i), with the following conditions, which will be referred to as the “Proposed Conditions”:

a. Water Quality Impact Assessment Agreement (“WQIA Agreement”) is signed and registered OR a signed copy is received together with lawyer’s fees and disbursements to register; and,

b. 15-metre natural vegetative buffer (“Buffer”) shall be restored and maintained.

ANALYSIS AND FINDINGS

23For the reasons that follow, and upon various findings set out herein, the Tribunal determines that the four tests under s. 45(1) of the Act have been met and that it is appropriate to dismiss the Appeal and allow the Proposed Variances, subject to the Proposed Conditions.

PPS

24Mr. Jardine opined that the Application is consistent with the PPS. Mr. Jardine took the Tribunal to specific policies within the PPS, which support his opinion that the Proposed Development is consistent with the PPS.

25Mr. Jardine testified that the Subject Property is an undersized existing lot of record and he noted that this is important to bear in mind when considering the Proposed Variances. Policy 1.1.1 of the PPS promotes healthy, liveable and safe communities. The Proposed Development is consistent with Policy 1.1.1(a), (c) and (h) as the Applicant will be developing an existing lot, which will include the restoration of a Buffer to assist in the prevention of erosion to help protect and preserve Graphite Lake.

26Policy 2.2.1 of the PPS directs planning authorities to implement ways to protect, improve or restore the quality and quantity of water. Mr. Jardine noted that the restoration of the Buffer combined with locating the Proposed Development as far back from Graphite Lake as possible will help protect water quality and minimize potential impacts. Locating the Proposed Development as far back as possible from Graphite Lake will keep both impermeable surfaces and the septic system away from the waterfront, which will help protect water quality.

27The PPS refers to protecting natural hazards from development in s. 3.1. Mr. Jardine testified that the Proposed Development is consistent with this policy as emergency services are not impacted by the slope on the Subject Property since it is not located between the private road and the dwelling. In addition, the WQIA Agreement requires the restoration of the Buffer and the implementation of soil erosion control methods, which together will help stabilize the slope.

28There was no evidence before the Tribunal to refute that the Proposed Variances and Proposed Development are consistent with the PPS and the Tribunal finds the same. As such, this Appeal will turn on the satisfaction of the test contained in s. 45(1) of the Act.

Four Tests under s. 45(1) of the Act

Do the Variances maintain the general intent and purpose of the ZBL?

29The Subject Property is zoned LSR Zone and the ZBL contains provisions to prevent development within 30 metres of the highwater mark. Mr. Jardine testified that the purpose of the LSR Zone is to recognize lots that front onto private roads which may have limited or no public services, including emergency services.

30Mr. Jardine testified that the lot depth and lot size of the Subject Property prevent the Proposed Development from meeting the minimum distance requirements from the highwater mark. The location of the septic tank and tile bed are restricted given the lot depth, which thereby restricts the location of the Proposed Development if the 15-metre Buffer is to be maintained.

31Mr. Jardine notes that the Proposed Development cannot meet the minimum setbacks due to the site constraints on the Subject Property. In his opinion, the reduced setbacks from the highwater mark and the slope meet the intent and purpose of the ZBL. The Proposed Conditions are methods to prevent any erosion issues and maintain water quality thereby mitigating any impacts from the reduced setbacks required due to the site constraints.

32The Appellant noted that the Subject Property is not a buildable lot and during cross-examination asked Mr. Jardine if he agreed. Mr. Jardine disagreed and pointed the Tribunal to s. 5.13 of the ZBL, which allows development on existing lots of record that do not meet the minimum lot area or frontage.

33Mr. Jardine’s opinion is that the Proposed Variances meet the intent and purpose of the ZBL and the Tribunal is in agreement with this opinion. The Proposed Development is situated in an optimal location on the Subject Property and the Proposed Conditions ensure that the general intent and purpose of the ZBL is being maintained.

Do the Variances maintain the general intent and purpose of the OP?

34Mr. Jardine advised the Tribunal that the Municipality does not have its own lower tier OP. As such, the Municipality relies on the upper tier, County OP.

35Mr. Jardine went into detail explaining the site constraints on the Subject Property, in particular lot depth and lot size. He testified that the Proposed Development is located as far from the highwater mark as possible given that the septic tank and tile bed need to be a certain distance from the front lot line in accordance with the Ontario Building Code.

36As noted above, in preparing for the Appeal, Mr. Jardine determined that the Applicant also required relief from s. 5.9.2(iii) of the ZBL as the Proposed Development was in proximity to a slope. The intent of Policy 4.4.2.2 of the OP is that the accepted angle of a slope for stability is 3 to 1, or 18 degrees. If the slope is greater than this angle then a minimum setback of 30 metres is required. Mr. Jardine conducted a site visit to determine the angle of the slope and confirmed that the slope meets the 3 to 1 test and conforms to Policy 4.4.2.2. As such, the 30-metre setback does not apply and the intent of the policy is being met by placing the Proposed Development as far back from the top of slope as possible. Mr. Jardine is of the opinion that the prevention of erosion is being achieved through the soil erosion and control methods contained in the Proposed Conditions, which require the Applicant to maintain a Buffer and enter into a WQIA Agreement.

37Mr. Jardine testified that Policy 5.4 of the OP speaks to zoning in areas designated in rural and waterfront. Policies 5.4.1.4 and 5.4.1.5 direct that development be permitted on privately serviced water and septic lots in close proximity to existing public roads and that any development should occupy only a small portion of the lot. The Proposed Development is consistent with these policies. The Subject Property is in close proximity to Graphite Road, which is publicly maintained. In addition, the Proposed Development will not exceed the maximum lot coverage permitted, which is 30%. As such, it was Mr. Jardine’s opinion that the Proposed Development is consistent with the intent of Policy 5.4.1 of the OP.

38Policy 5.4.3.5 permits development on private roads for existing residential lots that are in the LSR Zone. Mr. Jardine testified that the Subject Property is in the LSR Zone, is an existing residential lot of record and is located on a private road with limited or no public service available. As such, he opined that the Proposed Development is consistent with Policy 5.4.3.5 of the OP.

39The Appellant submitted to the Tribunal that the Proposed Development will set a precedent in the area and lead to a decline in the water quality of Graphite Lake. It was Mr. Jardine’s opinion that the Proposed Development is set back as far as possible from the highwater mark while recognizing the site constraints in terms of size, shape and topography. Potential negative impacts to the environment are mitigated by the use of native species in the Buffer and the location of the Proposed Development, including the septic system, as far back from the water as possible. Mr. Jardine noted that it is important to recognize that locating the septic system more than 30 metres from the highwater mark significantly limits where the proposed dwelling could be built. Mr. Jardine referred to Policies 5.4.4 and 5.4.5 and in particular, Policy 5.4.5.8, which notes that on existing lots of record where the 30-metre setback is not possible, development can be approved subject to approval of a minor variance and site plan approval. Mr. Jardine testified that the Subject Property is an existing lot of record and 30 metres is not possible given the site constraints and location of the septic system. The Applicant did apply for the Proposed Variances and site plan control, which will be achieved through the WQIA Agreement. Also of note is that the location of the Proposed Development is consistent with the established building lines on adjacent lots. As such, Mr. Jardine opined that the Proposed Development is consistent with the intent of the Policies set out in Policies 5.4.4 and 5.4.5 of the OP.

40Mr. Jardine advised the Tribunal that the Ministry of the Environment, Conservation and Parks (“MECP”) provided comments on the Proposed Development. The MECP recognize that the Subject Property is an undersized existing lot of record and that the septic system and dwelling in the Proposed Development are located as far back from the highwater mark as possible. The MECP commented that it meets the policies of the Province regarding development on a waterfront property.

41The Tribunal was persuaded by Mr. Jardine’s evidence and finds that the Proposed Variances meet the general intent and purpose of the OP. The use is permitted, water quality will be maintained through the restoration of the Buffer and the Proposed Development will be located as far back on the lot as the site constraints allow. In addition, the Proposed Conditions will ensure that the policies of the OP are upheld and adhered to.

Are the Variances minor?

42Mr. Jardine testified that the meaning of “minor” with respect to this branch of the test is something that is lesser or comparatively small in size or importance to be considered impactful. Mr. Jardine opined that the minor branch of the test is met. In assessing minor variance applications, Mr. Jardine noted that numbers are important, but one must also look at the impact of the requested relief. It is Mr. Jardine’s opinion that the Proposed Development is not too impactful on the Subject Property or the surrounding area because it is zoned for residential use in an area of residential development.

43The Appellant submitted that the Proposed Variances do not meet the minor branch of the test as the relief being requested is 50% of the required setback. She questioned Mr. Jardine on cross-examination how he could consider a 50% setback reduction minor. Mr. Jardine re-stated that the minor branch of the test is not necessarily about numbers, but rather about impact. He reiterated his opinion that the impact of the reduction in the setback would be minimal.

44Mr. Jardine noted that the slope setback requirement is 15 metres and the requested relief is 5 metres, which is a 66% reduction. While he noted that this may seem like a large number, one must again look at the impact. Mr. Jardine’s opinion is that the Proposed Development is setback similarly to the established building line of adjacent properties and as such, the impact is minimal.

45Mr. Jardine further noted that the impact the Proposed Development will have on water quality is mitigated by the Proposed Conditions. The Proposed Development is an appropriate size for the Subject Property as it does not exceed the maximum lot coverage requirements for the LSR Zone.

46The Tribunal prefers the testimony of Mr. Jardine and finds that the Proposed Variances are minor. The Proposed Development is modest and well situated on the Subject Property, and any negative impacts are minor in nature.

Are the Variances desirable for the appropriate development or use of the land?

47Mr. Jardine noted that the Proposed Variances should be evaluated on whether they are desirable from a planning and public interest point of view, not from the perspective of the building plans provided by the Applicant.

48The Proposed Development is on a waterfront lot which is zoned for residential use and is located in a residential area. The Proposed Development is within the size requirements of a dwelling for the LSR Zone. In other words, Mr. Jardine opined that it is not beyond the scale of appropriate development and is efficient infill of an existing lot of record.

49Mr. Jardine reiterated that, in his opinion, the Proposed Development is situated optimally on the Subject Property given the site constraints. He opined that the Proposed Variances are appropriate and that the Proposed Development will be in accordance with the established building line on adjacent lots.

50The Tribunal finds that the Proposed Variances are desirable for the appropriate development or use of the land.

CONCLUSION

51Based on the totality of the evidence, the Tribunal was persuaded that the Proposed Variances, subject to the Proposed Conditions, represent good land use planning, have regard to matters of Provincial interest in s. 2 of the Act and:

• Maintain the general intent and purpose of the ZBL;
• Maintain the general intent and purpose of the OP;
• Are minor in nature; and,
• Are desirable for the appropriate development or use of the land.

52The Tribunal recognizes the fact that Municipal Staff recommended approval of the Proposed Variances and the COA approved the original variance with conditions. There was no contradictory evidence to the municipal record, documents and materials presented to the Tribunal and the Tribunal had the benefit of the uncontroverted and uncontested evidence of Mr. Jardine, who was not seriously challenged under cross-examination.

53The Appellant is passionate about the area in which she lives but did not proffer any evidence upon which the Tribunal could rely to allow the Appeal and refuse the Proposed Variances. The evidence provided by the expert witness, who gave evidence in support of the Proposed Variances was convincing and unchallenged in establishing that the four tests referred to above have been met and that the Proposed Development represents good land use planning.

54The Tribunal had regard for the decision of the COA as well as the information considered by it.

ORDER

55THE TRIBUNAL having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Planning Act that no further notice is required;

56THE TRIBUNAL ORDERS that the Appeal is dismissed and the Proposed Variances to By-law No. 2004-35 are allowed subject to the conditions set out in Attachment 1 to this Order.

“C. Hardy”

C. hardy

MEMBER

“S. Bobka”

s. bobka

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.

ATTACHMENT 1

CONDITIONS:

Applicant(s) to enter into Water Quality Impact Agreement with Municipality and have same registered on title within six (6) months of the date hereof.

Building Permit not to be issued until:

1. Water Quality Impact Assessment Agreement is signed and registered OR signed copy is received together with lawyer’s fees and disbursements to register.

A 15 metre natural vegetative buffer shall be restored and maintained.