Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 31, 2022

CASE NO(S).: OLT-22-002238

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

Applicant/Appellant: Robert Lediard and Jayne Skema Subject: Minor Variance Description: Requesting relief from the overall lot coverage provisions in the R1 Zone, to permit the shed to remain Reference Number: A38/21 Property Address: 65 Forest Avenue Municipality/UT: Wasaga Beach/Simcoe OLT Case No: OLT-22-002238 OLT Lead Case No: OLT-22-002238 OLT Case Name: Lediard v. Wasaga Beach (Town)

Heard: May 5, 2022 by Video Hearing

APPEARANCES:

Parties Robert Lediard

Counsel James Feehely

DECISION DELIVERED BY ERIC S. CROWE AND S. BOBKA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Robert Lediard and Jayne Skema (the "Applicant/Appellant") on February 9, 2022, against the decision of the Township of Wasaga Beach ("Township"), Committee of Adjustment's (the "CoA") decision in relation to a minor variance from Zoning By-law No. 2003-60 as amended (the "ZBL”) concerning 65 Forest Avenue, in the Township (the "Subject Property").

2The Applicant/Appellant requests to increase the total lot coverage to permit an existing garden shed to remain in the rear yard of the Subject Property. The Application would recognize the existing 10.3 square metre ("m²") garden shed, which in addition to the existing dwelling and garage, would result in a total lot coverage of 39.8%, whereas a maximum of 35% lot coverage is permitted.

3It is noted that a minor variance was authorized for the Subject Property to increase lot coverage, from 35% to 38%, through the CoA on November 20, 2017. The previous Application received relief from the minimum required rear and interior side yard setbacks, to permit a detached garage subject to conditions, requiring the removal of two accessory structures (including the garden shed). The Applicant/Appellant is now requesting relief from the overall lot coverage provisions in the R1 Zone, to increase the permitted lot coverage from 38% to 39.8% and to retain the garden shed.

4The Staff Planning Report dated January 17, 2022, supported the Application and determined that it maintained the intent and general purpose of the Township OP and the ZBL and met the other parts of the legislative tests for a minor variance. Subsequently on January 17, 2022, the CoA denied the Application stating the requested variance was not desirable for the appropriate development and use of the Subject Property.

5For the reasons that follow, the Tribunal allows the Appeal.

REQUESTED MINOR VARIANCE

6The Applicant/Appellant requests relief from s. 4 Residential Type One (R1) Zone of the ZBL, from the maximum lot coverage provision for all buildings and structure. The variance proposed would permit the existing 10.3 m² (108 square feet (“ft²”)) garden shed (the second detached accessory structure on the property) to remain. Specifically, the Applicant/Appellant's request for relief from s 4.3.9 of the ZBL, to increase the maximum permitted lot coverage from 38% to 39.8% for an increase of 1.8%.

SUBJECT PROPERTY AND SURROUNDING AREAS

7The Subject Property is centrally located north of River Road West and south of the Nottawasaga Bay and is located in a residential neighbourhood consisting of cottage type dwellings and raised bungalows. Wasaga Beach Hydro and Fire Hall lands immediately abut the Subject Property to the south and west. Lands supporting a single detached dwelling abut the Subject Property to the west and single detached dwellings are located across Forest Avenue to the north.

8The Subject Property is municipally addressed as 65 Forest Avenue and is legally described as Part of Lot 10, Concession 16, Part 3, 51R-29398. It is site-specific zoned Residential Type 1 (R1) within the ZBL. The Subject Property has a frontage of approximately 18.32 metres ("m") (60 feet (“ft”)), a depth of approximately 30.48 m (100 feet) and an area of approximately 558 m² (6,012 ft²).

9The Subject Property is regulated by the Nottawasaga Valley Conservation Authority (“NVCA”).

HEARING

10There were no requests for Party or Participant status at the Hearing.

11The Tribunal received and marked the following documents as Exhibits to the Hearing:

• Exhibit 1: Municipal Record
• Exhibit 2: Appellant's aerial photo of the Subject Property
• Exhibit 3 (a): Appellant's photo of two Garden Sheds
• Exhibit 3 (b): Appellant's photo of a Garden Shed

LEGISLATIVE FRAMEWORK

Section 45 - Minor Variance

12An appeal pursuant to s. 45(12) of the Planning Act (the "Act") is a hearing de novo. The Applicant/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.

13In 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 (“Growth Plan”).

14The 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 CoA and the information considered in the course of making its decision, as set out in s. 2.1(1) of the Act.

EVIDENCE

15The Tribunal heard from Joel Vines, a Planner for the Township, who was summoned by the Applicant/Appellant and was qualified by the Tribunal to provide expert testimony in land use planning. Being the only land use planner providing evidence at this hearing, the Tribunal accepts his uncontroverted evidence.

16Mr. Vines explained that this was a "fresh" application for a minor variance from the 2017 detached garage application. Therefore, he conducted his analysis on the merits of the new application.

17Mr. Vines advised that there were two letters from the Public opposing the application. Both submissions referenced the 2017 application process and approval of the detached garage and removal of two accessory structures. The opposing submissions expressed concerns that the Appellant should not be able to make a new application since the 2017 application had an unfulfilled condition (removal of accessory structures).

18Mr. Vines explained that his interpretation was that the Planning Department has the ability to process applications when they receive them and determine the merits of any new application. The witness conceded that the Appellant was more or less requesting "forgiveness rather than permission," from the previous application of not removing the accessory structures. However, he advised that he conducted his analysis using the Township's OP and ZBL regulations, and found the application maintains the general purpose and intent of both.

PROVINCIAL POLICY STATEMENT, 2020 (“PPS”)

19The PPS provides policy direction on matters of Provincial interest related to land use planning.

20Mr. Vines opined that the variance has regard to matters of Provincial interest in s. 2 of the Act, including the orderly development of safe and healthy communities; protection of public health and safety; and the appropriate location for growth and development.

21Mr. Vines’ evidence was uncontested. The Tribunal accepts Mr. Vines' evidence and finds that the proposal is consistent with the PPS.

GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE (“Growth Plan”)

22The Growth Plan is a long-term plan that works with other provincial plans to provide a framework for growth management.

23Mr. Vines testified that there was no conflict or issues that triggered any concerns with the application conforming to the Growth Plan.

24Mr. Vines’ evidence was uncontested. The Tribunal accepts Mr. Vines’ evidence and finds that the proposal conforms with the Growth Plan.

FOUR PART TEST OF A MINOR VARIANCE

Maintains the Intent of the OP

25Mr. Vines testified the Subject Property is designated Residential within the OP. The existing residential use and two accessory structures are permitted in this designation and do not exceed the maximum lot coverage of 65 m².

26Mr. Vines' opinion is that there is no conflict and the variance maintains the general purpose and intent of the OP.

Maintains the Intent of the ZBL

27Mr. Vines informed the Tribunal that the Subject Property is zoned Residential Type 1 (R1) within the ZBL. In 2017, the Township permitted an application for a detached garage on the Subject Property. The minor variance imposed specific size limits to the detached garage and a condition that the two accessory structures currently located on the lands be removed. There was no specific date regarding the removal of those structures.

28Mr. Vines advised that the Applicant/Appellant now requests relief from the overall lot coverage provision to permit the garden shed to remain. The coverage increase would equate to an additional 10.3 m² (108 ft²) of building coverage. While the shed does not require a building permit based on its size, the location of the shed must still comply with the R1 Zone provisions.

29Mr. Vines noted that s. 3 of the ZBL allows for two accessory structures. The Staff Report noted the interior side yard setback of 1.2 m (4 ft) and the rear yard setback of 2.2 m (7.5 ft) both comply and that the minimum setback requirements of 0.9 m for detached accessory structures are less than 3.7 metres (12.1 ft) in height. Mr. Vines informed the Tribunal that the combined lot coverage for both the garage and the garden shed (proposed to remain) is equivalent to approximately 46.07 m² (496 ft²), whereas the ZBL would permit 65 m² (700 ft²) total for all detached accessory structures.

30Mr. Vines informed the Tribunal that the intent of the maximum lot coverage provision is to set standards of development in certain areas. Mr. Vines testified, that provided the Application for variance pertains to the detached garage and the coverage permission of 39.8%, the intent and purpose of the performance standard for lot coverage in the ZBL would be maintained.

31In Mr. Vines' opinion, there is no conflict and the variance maintains the general purpose and intent of the ZBL.

Considered Minor in Nature

32Mr. Vines advised that Planning staff were of the view that the Application for relief can be considered to conform to the OP, maintain the intent of the ZBL and can be considered desirable and appropriate. It is not expected that the variance will negatively impact the Subject Property, the municipality, nor the abutting lands and therefore, can generally be considered minor in nature. Staff, for these reasons, recommended that the variance be authorized.

Desirable for the Appropriate use of the Land

33Mr. Vines advised there had been two site visits to observe the Subject Property including his own on May 4, 2022, to confirm his initial assessment. The Applicant/Appellant presented a photograph (Exhibit 3a) of the accessory structure on the right (garden shed) and neighboring shed on the left as shown below.

34Mr. Vines advised that the variance requested to increase lot coverage would not impact the proper use of the land and does not detract from the community character. Mr. Vines testified that the application can be deemed desirable and appropriate.

35Mr. Vines advised that NVCA has reviewed the application and based upon their mandate and policies under the Conservation Authorities Act, provided no objection to its approval. He stated that the Subject Property is under NVCA regulatory jurisdiction due to it being within 120 m of a wetland on the opposite side of River Road West. Mr. Vines stated that the existing garden shed is located in an area of no concern and does not require a permit from the NVCA under the Ontario Regulations.

36Mr. Vines advised that Public Works also reviewed the Application and does not oppose the Applicant/Appellant's request. The Staff Report from Public Works notes that the Subject Property must manage any storm runoff within the lot and not drain onto neighbouring properties. Public Works further notes that minor lot grading may be required to promote positive drainage, at the discretion of the Building Department. The Staff Report notes the size of the structure, being 10.3 m² (108 ft²), does not require a building permit. In the Staff Report, the Building Department has not advised that lot grading is required.

37Mr. Vines spoke to the conditions recommended in the Staff Report and confirmed that, in his opinion, they should be applied. It was confirmed by Counsel that the Applicant/Appellant agrees to those proposed conditions.

CONCLUSIONS

38In determining this matter, the Tribunal accepts and adopts the uncontroverted land use planning evidence and expert opinion provided by Mr. Vines. The Tribunal is persuaded by the evidence and is satisfied that the requested variance is minor in nature, desirable for the appropriate development of the land and maintains the general intent and purpose of both the OP and ZBL. The Tribunal is further satisfied that the variance has appropriate regard for matters of Provincial interest; is consistent with the PPS; conforms to the Growth Plan; and overall, represents good planning in the public interest.

39Regard has been given to the decision of the CoA and the information considered by it in the course of making its decision. Upon the evidence of Mr. Vines, regarding the two letters from neighboring property owners opposing the Application, the Tribunal is satisfied that the concerns raised were given appropriate consideration and that the variance is a new application and will not result in undue adverse impacts to any property owner or to the area in general.

ORDER

40The Tribunal Orders that the appeal is allowed and the variance to Zoning By-law No. 2003-60 is authorized subject to the following Conditions:

(1) That the variance for lot coverage only applies to the garden shed as shown in the application for variance;

(2) That the maximum lot coverage not exceed 39.8%;

(3) That all other provisions of the zoning by-law be complied with; and,

(4) That any future development on the Subject Property will be in accordance with the current Town of Wasaga Beach Standards; specifically, the Infill Lot Grading and Drainage Policy.

"Eric S. Crowe"

ERIC S. CROWE

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.