Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 08, 2022
CASE NO(S).: OLT-22-001997
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: Juan Hernandez
Subject: To amend the Zoning By-law – Refusal of application
Description: Proposing a zoning bylaw amendment to rezone the subject land to a Residential Fourth Density (R4-X) Zone with special provisions to permit the operation of a maximum of ten (10) vending machines from a covered structure on the property
Reference Number: B-77-1150
Property Address: 57 Octavia Street
Municipality/UT: Belleville/Hastings
OLT Case No.: OLT-22-001997
OLT Case Name: Hernandez v. Belleville (City)
Heard: May 24, 2022 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Juan Hernandez | Dara Saunders-Fyfe |
| City of Belleville | Jennifer Savini* |
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND JATINDER BHULLAR ON MAY 24, 2022 AND ORDER OF THE TRIBUNAL
1The Tribunal convened a merits hearing, in the matter of the appeal (“Appeal”) by Juan Hernandez (“Applicant/Appellant”) against the City of Belleville (“City”) for the refusal of a Zoning By-law Amendment (“ZBA”) application. These proceedings were commenced under s. 34(11) of the Planning Act (the “Act”). The property at the heart of this Appeal is known municipally as 57 Octavia Street in the City (“Subject Land”).
2The Applicant/Appellant seeks a ZBA to amend the City’s Zoning By-law No. 10245 (“ZBL 10245”), as amended, in order to rezone the Subject Land from a Residential Fourth Density (R4) to a Residential Fourth Density (R4-X) Zone with special provisions to support a vending machine business use as an accessory use on the residential property. The Applicant/Appellant is not seeking an Official Plan Amendment (“OPA”).
3For the information and reasons that follow, and because of the withdrawal of the Appeal by the Applicant/Appellant, the Appeal file is closed.
PROPOSAL
4The requested special provisions include:
To permit the sale of convenience items for the daily or occasional needs for the residents of the immediate area through the use of vending machines as an accessory use to the residential use of the Subject Land, subject to the following conditions:
A maximum of 10 vending machines are permitted;
All machines must be located within a detached covered structure;
The detached structure: o to be open on the north side only; o minimum front yard setback of 3.0 metres (“m”); o minimum interior side yard setback of 0 m; o maximum width of 2.6 m; o maximum area of 26.6 square metres (“m2”);
No employees except the owner of the property;
No outside storage of any supplies or materials; and;
No illuminated signage except on the vending machines
5The ZBA Application was denied by the City on December 13, 2021.
6On May 24, 2022, the day of the Hearing before the Tribunal, a Will Say Statement was received from the expert witness testifying on behalf of the Applicant/Appellant. However, in the Will Say Statement, substantial revisions were proposed versus the original application made with the City and their refusal of the same. In particular, the following special provisions had been listed as requested by the Applicant/Appellant:
The sale of convenience items for the daily or occasional needs for the residents of the immediate area through the use of vending machines shall be permitted, as an accessory use to the residential use of the Subject Land, subject to the following conditions:
A maximum of 5 vending machines are permitted;
All machines must be located within an attached garage of the dwelling on the Subject Land;
The maximum area utilized by the machines shall be 14.0 m2;
There shall be no: i) Employees except the owner of the Subject Land; ii) Outside storage of any supplies or materials; iii) External illuminated signage; and; iv) More than three (3) outdoor residential lights on the west elevation of the dwelling on the Subject Land, which lights shall not be directed onto adjacent properties.
7The Applicant/Appellant agreed that the revised ZBA had not been reviewed or assessed by the City in reaching its decision. Moreover, the special provisions so described were not provided to the Tribunal in a timely fashion having been sent to the Case Coordinator in proximity to the start of the Hearing.
SITE CONTEXT
8The Subject Land is located on the east side of Octavia Street, north of Catharine Street and south of Holloway Street. Octavia Street is a local road. To the north, east, and west of the Subject Land are low density residential land uses (single detached and two-unit dwellings). To the south of the Subject Land is a medium density residential land use (townhouse dwelling).
9The Subject Land has a frontage of approximately 16.2 m and a lot area of approximately 454.36 m2. It contains a single detached dwelling.
10In addition to the detached dwelling, the Subject Land also contains a covered, partially enclosed “lean-to” structure extending from the front yard into the south side yard attached to a southern boundary fence, also intersected by a fence extending from the south side of the existing dwelling to the southern boundary fence, and one small, fully enclosed structure located immediately east of the covered, partially enclosed structure. Currently, a total of eight vending machines and one microwave are located under the “lean to” structure, which are visible from street and accessible from the driveway for the Subject Land. Lighting is also attached to this structure. Signage of varying sizes is located on the property.
HEARING
11The Tribunal received and marked the following as exhibits:
- Exhibit 1: The Affidavit of Service of the Notice of Hearing.
- Exhibit 2A: The CV of Spencer Hutchison.
- Exhibit 2B: The Acknowledgment of Expert’s Duty of Spencer Hutchison.
- Exhibit 3: The “Will Say” Statement of Spencer Hutchison, dated May 24, 2022.
- Exhibit 4: The Document Book of the City of Belleville.
- Exhibit 5: The In-Force Official Plan for the City of Belleville (“OP”).
- Exhibit 6: Zoning By-Law No. 10245, as amended, of the City of Belleville.
12The Applicant/Appellant called Mr. Hutchison, who was qualified by the Tribunal to provide expert opinion evidence in the area of land use planning.
13Mr. Hutchison advised the Tribunal that the key question was whether the Applicant/Appellant’s vending machine business should be defined as a commercial activity or a home occupation.
14However, Mr. Hutchison, during his testimony, confirmed that the Applicant/Appellant’s existing vending machine business does not conform with the City’s OP or the City’s ZBL and the original ZBA Application is flawed. He opined that the detached structure housing the vending machines was not acceptable or desirable in its current deployment, and that a possible attached closed structure connected to the main dwelling unit would be required for possible consideration as a home occupation.
15Mr. Hutchison informed the Tribunal that he had provided, just prior to the start of the Hearing, an alternate proposal for a ZBA that would comply with the requirements of the City’s OP and the City’s ZBL. However, the City informed that they have not reviewed or made a determination on this revised ZBA. Mr. Hutchison opined that the revised ZBA indeed varies fundamentally from the ZBA that accompanied the original application, which was subsequently refused by the City.
16The Applicant/Appellant’s legal representative submitted that the Tribunal should consider and make a finding on whether the vending machine business was to be defined as a home occupation or a commercial activity. She submitted that, as a result of such a determination, the Applicant/Appellant would make a new application to the City.
17The Tribunal informed the parties that it could only consider the application that was subject to the Appeal before it and which was originally refused by the City. The Tribunal noted that such narrow determination does not allow for wholesome review of planning matters or concerns that could arise from a new application or the revised ZBA.
18The Applicant/Appellant’s legal representative requested a break so she could get direction from the Applicant/Appellant regarding continuing with the hearing.
19After consultation with the Applicant/Appellant, the Applicant/Appellant’s legal representative submitted that they would like to withdraw the appeal without prejudice. The City did not object to the withdrawal of the Appeal.
20The Tribunal granted the request to withdraw the Appeal and to close the file.
ORDER
21THE TRIBUNAL ORDERS that the file is closed.
“Bita M. Rajaee”
bita M. rajaee
MEMBER
“Jatinder Bhullar”
jatinder bhullar
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.