Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 26, 2022
CASE NO(S).:
OLT-22-002351
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Andrew and Siobhan McKay
Subject:
Minor Variance
Description:
To allow the construction of a 91.8 square metre (988.16 square feet) garage
Reference Number:
A15-21
Property Address:
539 Skerryvore Community Road
Municipality/UT:
The Archipelago/Parry Sound
OLT Case No.:
OLT-22-002351
OLT Lead Case No.:
OLT-22-002351
OLT Case Name:
McKay v. The Archipelago (Township)
Heard:
July 6, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Andrew and Siobhan McKay
Marc Kemerer
(“Applicants/Appellants”)
DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL
BACKGROUND
1This was a hearing of an appeal by the Applicants/Appellants from the decision of the Township of The Archipelago (“Township”) Committee of Adjustment (“COA”) to deny an application for minor variances (“MV”). The Appellants are seeking relief from s. 6.1.3 c) i) Maximum Lot Coverage, and f) Side Yard Setback of the Township's Comprehensive Zoning By-law (“ZBL”) No. A2000-07, as amended, to allow the construction of a 91.8 square metre (“m²”) (988.16 square feet (“sq ft”)) detached garage.
2Number 539 Skerryvore Community Road (“subject property”/”subject lands”) is located on Part of Lot 32, Concession 9 in the geographic Township of Shawanaga. The subject property is described as Part 8 of Survey Plan No. PSR-1503 and is zoned Coastal Residential (CR).
3There’s an existing dwelling on the subject property.
4In the original application made to the COA, the Applicants were proposing to build a 91.8 m² detached garage as follows:
Existing
Permitted
Proposed
Total Floor Area
172.9 m² (10.2%)
127.48 m² (7.5%)
264.7 m² (15.6%)
Side Yard Setback
≥ 6m
6 m
1.415 m
The application was refused by the COA.
5Prior to the hearing, the Tribunal was informed through the Case Coordinator that the settlement was reached as to how development should proceed on the subject lands and the Appellants are now seeking an order of the Tribunal authorizing the MV request, as revised:
Existing
Permitted
Proposed
Total Floor Area
172.9 m² (10.2%)
127.48 m² (7.5%)
228.6 (13.4%)
Side Yard Setback
≥ 6m
6 m
3.24 m
6The only evidence before the Tribunal is the McKay Planning Report (Exhibit 1) prepared by John Jackson. Mr. Jackson is a qualified professional land use planner, and he provided the Tribunal with a comprehensive overview of this application in relation to the relevant policies.
LOCATION AND SITE CONTEXT
7Mr. Jackson stated that the lands where the subject property is located, were the site of the former Skerryvore Hotel that ceased to exist in the 60’s and were purchased by a developer, who divided the lands into several hundred lots. No standards were in effect at that time, as the creation of the lots pre-dated subdivision control.
8In his planning report, Mr. Jackson stated:
The Skerryvore lots were small, less than 0.2 hectares, and a large number of the lots were “back lots” not located on water. The lands were “checker boarded” in anticipation of new planning rules when they became incorporated into The Archipelago, the lots would remain separately conveyable. The subject property is one of the Skerryvore lots having 0.17 hectares with 40 metres of frontage. This contrasts with the current lot standard of 100 metres of frontage and 1.0 hectare of lot area.
REVISED MINOR VARIANCE
9As the parties have reached a settlement, the Tribunal has been requested to consider an amended application.
10Pursuant to s. 45(18.1) and (18.1.1) of the Planning Act (“Act”), the Tribunal has the discretion to allow amendments to a MV application without the requirement for further public notice if it is of the opinion that such amendments are minor by virtue of s. 45(18.1) and (18.1.1) of the Act.
11Mr. Jackson explained that the basis for the settlement was the reduction of the size of the proposed detached garage from 91.8 m² to 55.7 m² and an increase from the proposed 1.415 metres (“m”) to 3.244 m side yard set back. He also noted that in a typical urban setting, the side yard setback is between 1 m to 3 m. Thus, in his professional planning opinion, the revised 3.244 m setback was appropriate for the subject property.
LEGISLATIVE TESTS
12In order for the Tribunal to authorize the MV, it should satisfy four tests that are set out under s. 45(1) of the Act. The four tests are:
maintain the general intent and purpose of the official plan;
maintain the general intent and purpose of the zoning by-law;
be desirable for the appropriate development or use of the land, building or structure; and
be minor.
13In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act to the decision of the approval authority under s. 2.1 of the Act.
14Mr. Jackson provided the Tribunal with a comprehensive overview of the application in relation to the four tests and in regard to the matters of the provincial interests. He opined that due to being an undersized lot, the subject property is being penalized; if the subject lands were just 100 m² larger, the proposed coverage conflict would not exist. Mr. Jackson testified that the settlement to satisfy the criteria of s. 45(1) of the Act has been reached and he has determined that the proposed MV application represents good land use planning, as outlined in his McKay Planning Report (Exhibit 1).
CONCLUSION
15Based on the uncontested evidence provided by Mr. Jackson, the Tribunal finds that the variances that form the settlement are minor, represent good land use planning, satisfy the four tests of s. 45(1) of the Act and maintain the general intent and purpose of the ZBL.
ORDER
16THE 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 s. 45(18.1.1) of the Planning Act that no further notice is required.
17THE TRIBUNAL ORDERS that the appeal is allowed in part and the variances to the Township of The Archipelago’s By-law No. A2000-07, as amended, are authorized subject to the Conditions:
that a building permit for the proposed works be secured within 2 years from the date of the Tribunal's Decision;
that the proposed garage be built substantially to that which was applied for; and,
that the Appellants will plant the vegetation buffer as illustrated in Schedule “A”.
“P. Tomilin”
p. tomilin
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.
OLT-22-002351 – Schedule A