Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 24, 2022
CASE NO(S).: OLT-22-002880 (Formerly PL210314)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Colombo Andreacchi
Subject: Application to amend the Zoning By-law – Refusal of application
Description: To permit an oversized detached accessory structure to be in the front yard in the Oak Ridges Moraine Countryside (ORM CS)
Reference Number: Z07/20
Property Address: 8555 5th Sideroad
Municipality/UT: Adjala-Tosorontio/Simcoe
OLT Case No: OLT-22-002880
Legacy Case No: PL210314
OLT Case Name: Andreacchi v. Adjala-Tosorontio (Township)
Heard: June 28, 2022 by Video Hearing
APPEARANCES:
Parties Counsel
Colombo Andreacchi (“Applicant” / “Appellant”) Alex Ciccone
Township of Adjala-Tosorontio (“Township”) James J. Feehely
MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON JUNE 28, 2022, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Appellant is seeking a zoning by-law amendment to permit the construction of an oversized detached accessory structure within the front yard at 8555 5th Sideroad in the Township of Adjala-Tosorontio in Simcoe County (“Subject Property” / “Subject Lands”). The proposed building is to be 232.26 square metres (m2) in size in a zone which (at the subject time) permits an accessory building of 58 m2 in size. The building is also proposed to be located in the front yard, whereas accessory buildings are directed to the rear or side yards.
2It is noteworthy that since the Application was submitted, the Township amended its Zoning By-law to increase the as-of-right maximum Gross Floor Area (“GFA”) for accessory structures from 58 m2 to 150 m2, which would apply to the Subject Property. However, the present appeal is concerned with amending the Zoning By-law as it existed as of the date the Application was submitted and the issue regarding the location of the accessory building in the front yard remains an issue.
3The parties notified the Tribunal that they have reached a settlement. The following is an account of the settlement together with a summary of the uncontested evidence in support of the settlement provided by Michael T. Larkin, a professional land use planner retained by the Applicant and qualified by the Tribunal.
BACKGROUND
The Subject Property
4The Subject Property is located within the “Countryside Area” of the Oak Ridges Moraine Conservation Plan (“ORMCP”). Mr. Larkin confirmed that the proposed use of an accessory garage is permitted in the ORMCP for the Subject Property. Mr. Larkin relatedly testified that ORMCP mapping reveals that no natural heritage features are directly associated with the Subject Property; however, one of the woodlots on the Property, a red pine plantation, is technically defined as significant.
5The Subject Property is designated “Countryside Area” in the County of Simcoe Official Plan (“CSOP”); is designated “Countryside Area” in the Township of Adjala-Tosorontio Official Plan (“TATOP”) according to Figure 5 of Schedule E-2 ORM of the TATOP; and is zoned as “Oak Ridges Moraine Countryside Area” in the Township of Adjala-Tosorontio Zoning By-law 03-56 (“Zoning By-law”).
6Mr. Larkin further testified that the Subject Property is 4 hectares in area and currently comprises a single-detached residence and an existing shed. A heavily wooded area exists on the property along the permitter to the north-east and west with a cleared area in the middle where the residence is located. Surrounding uses include rural residential and farm uses featuring a variety of accessory structures. The Subject Lands are located within the Oak Ridges Moraine and associated Significant Woodlands are scattered throughout the surrounding area.
The Application
7As part of the original Application, the Applicant proposed two potential locations for the subject accessory building:
a. Location A would be located to the Northwest of the existing dwelling. It would encroach on the existing significant woodlot (the red pine plantation). This would require the removal of a number of red pines between 15-20cm in diameter, many of which are in poor condition.
b. Location B would be located due North of the existing dwelling. It would not encroach on the existing significant woodlot; however, it would require removal of 8 large healthy trees that occur as part of an aesthetic hedgerow feature.
8As part of the Application, the Applicant provided a Natural Heritage Evaluation (NHE) prepared by Michalski Nielsen Associates Limited. The NHE recommended siting the accessory building in Location A. As laid out in the NHE, although the ORMCP technically defines the red pine plantation as a significant woodlot, the removal of small (15-20cm) red pines which are poor in health will not impact the ecological or aesthetic value of the red pine plantation area. Further, such tree removal can be offset by planting native trees which will have meaningful ecological benefits.
9Following receipt of the Application, Township staff prepared a report to Township Council that recommended approval of the Application with conditions. Despite staff’s recommendation, Township Council refused the Application. This brought about the present appeal and eventually the settlement now presented for the Tribunal’s consideration.
10The Amending By-law proposed as part of the settlement (as set out in the below Order) would change the zoning to a site-specific zoning with the following site-specific regulations:
a. to allow an accessory structure of 140 m2;
b. to allow for an accessory structure in the front yard; and
c. to allow a minimum front-yard setback of 102 m, to permit the use in the front yard and to account for future road upgrades intended by the Township.
11Notably, the settlement includes a provision whereby the Applicant agrees to enter into a Site Plan Agreement with the Township which will address all requirements identified in the NHE to offset or improve ecological or aesthetic impacts of the proposed development.
PLANNING analysis
12Summarily, Mr. Larkin opined that the proposed settlement should be approved by the Tribunal since it adequately:
a. Has regard to sections 1.1 and 2 of the Planning Act, RSO 1990, c P13 (“Act”);
b. Is consistent with the Provincial Policy Statement 2020 (“PPS”);
c. Conforms to the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”);
d. Conforms to the Oak Ridges Moraine Conservation Plan (“ORMCP”);
e. Conforms to the intent and purpose of both the County and the Township Official Plans; and
f. Represents good planning in the public interest.
13The following is a more detailed account of Mr. Larkin’s planning opinion.
The Planning Act
14Mr. Larkin testified that s. 2 of the Act requires that regard be given to matters of "Provincial Interest" including the protection of the ecological system such as natural areas, features and functions. He opined that the NHE submitted with the application advised that the proposed accessory building will not have a negative impact on the Significant Woodland associated with the Subject Lands.
15Mr. Larkin concluded that the proposed application successfully addresses the requirements of the Act.
Provincial Policy Statement
16The PPS provides policies that guide development within the Rural Areas of the province, recognizing that rural areas are important to the economic success and quality of life of Ontario. Rural areas are defined as a system of lands that may include rural settlement areas, rural lands, prime agricultural areas and natural heritage and resource areas.
17Mr. Larkin opined that viable rural areas should be supported by building on rural character and leveraging rural amenities and assets (policy 1.1.4.1). Mr. Larkin testified that the Subject Property is considered "Rural Lands" and development is directed to rural lands in accordance with s. 1.1.5.
18Mr. Larkin testified that, when directing development on rural lands, planning authorities must apply the relevant policies of Section 2: Wise Use and Management of Resources and Section 3: Protecting Health and Safety. A variety of uses are permitted on rural lands including (policy 1.1.5.2):
resource-based recreational uses (including recreational dwellings); and
limited residential development
19Mr. Larkin further opined that development that is compatible with the rural landscape and sustainable by rural servicing is promoted (policy 1.1.5.4) and development must be appropriate for the available infrastructure (policy 1.1.5.5). He testified that residential uses are permitted on rural lands and opined that the proposed accessory structure will be in keeping with the surrounding uses. He noted that properties in the area are generally large and the Subject Lands are well-buffered from adjacent land uses by distance and the woodlot that envelopes it. He further opined that the addition of a garage to the Subject Lands is typical of other development in the area which is characterized by residential and farm properties with barns and other accessory structures.
20Mr. Larkin testified that the PPS includes policies that protect natural features and areas for the long term (policy 2.1.1). Diversity and connectivity of natural features must be maintained (policy 2.1.2) and development and site alteration are not permitted on lands adjacent to natural heritage features “unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated that there will be no negative impacts on the natural features or on their ecological functions” (policy 2.1.8).
21Mr. Larkin noted that there are no natural heritage features identified on the Subject Lands, but the woodlot that surrounds the Subject Lands is considered significant. Accordingly, a NHE was undertaken which concluded that the proposed garage will nominally encroach into the edge of an unhealthy red pine plantation in a location which is well-removed from any other Key Natural Heritage Features or Hydrologically Sensitive Features. The NHE confirms that the proposed location is appropriate and the woodlot will be improved through the addition of native trees and vegetation to offset tree removals that will be part of the proposed development. A set of recommendations were included in the NHE to ensure no impacts to any significant or natural heritage features that may be associated with the Subject Lands. These recommendations will be included in the aforementioned Site Plan that the Applicant has agreed to enter into as part of the settlement of this matter.
22In conclusion, Mr. Larkin opined that consistency with the PPS has been demonstrated.
Growth Plan for the Greater Golden Horseshoe
23The Growth Plan provides a long-term plan for growth in the Greater Golden Horseshoe. Similar to the PPS, policies are provided which guide growth in Rural Areas, protection of Natural Heritage Features as well as additional policies to guide growth in Simcoe County. Mr. Larkin testified that the addition of an accessory structure to an existing residential use is not considered growth in the context of the Growth Plan which largely addresses population and employment growth, and where this type of growth should be directed in the Greater Golden Horseshoe.
24Mr. Larkin testified that compatibility with other rural land uses is very generally addressed in the rural policies in s. 2.2.9 and he opined that the proposed accessory building is considered compatible with the surrounding uses.
25Mr. Larkin testified that s. 4.0 of the Growth Plan includes policies that protect natural heritage features. S. 4.2.4 provides policies that regulate development and site alteration on lands adjacent to natural heritage features and proposals for development within 120 m of key natural heritage features within the Natural Heritage System of the Growth Plan requires a NHE. In the present case, as previously noted, a NHE was undertaken which confirms that no natural heritage features are identified on the Subject Lands and no net negative impacts are anticipated to the Significant Woodland associated with the Subject Lands.
26In conclusion, Mr. Larkin opined that that conformity to the Growth Plan has been established, with the proposed accessory use being permitted and the NHE supporting the proposed location.
The Oak Ridges Moraine Conservation Plan
27As previously mentioned in this decision, Mr. Larkin testified that the Subject Lands are located within the "Countryside Areas" of the ORMCP and a review of the ORMCP supporting maps reveals that no natural heritage features are directly associated with the Subject Lands. However, the red pine plantation on the Subject Lands is considered significant. Accordingly, Mr. Larkin opined that policies in s. 13 of Part II, Land Use Designations, which guide land uses within the Countryside Areas of the moraine, as well as policies in Part III, Protecting Ecological and Hydrological Integrity, are applicable to the present application.
28Mr. Larkin testified that Countryside Areas provide a transition and buffer between rural uses and the Natural Core Areas, Natural Linkage Areas and the urbanized settlement areas, and agriculture and natural features are to be protected. Several uses are permitted in Countryside Areas including residential and accessory uses (s. 13). The ORMCP defines accessory uses as "a use of land, buildings or structures that is normally incidental or subordinate to the principal use, building or structure located on the same lot".
29Mr. Larkin further testified that an accessory use is recognized as permitted in a Countryside Area of the Oak Ridges Moraine provided the use is subordinate to the primary use of the property. He opined that the proposed garage has been designed to be subordinate to the primary residential use of the property and is therefore considered a permitted use.
30Mr. Larkin testified that s. 20 of the ORMCP states that every application for development or site alteration must identify planning, design and construction practices that do not impede hydrological functions, movement of plants and animals among natural heritage features, key hydrologic features and adjacent land within Natural Core Areas and Natural Linkage areas. As previously noted, the NHE that was undertaken confirmed that the proposed location and construction of the garage would not negatively impact any ecological features based on recommendations within the report.
31Mr. Larkin testified that significant woodlands are identified as a key natural heritage features in s. 22. Restrictions to development and site alternation within a significant woodland requires that a NHE be undertaken according to criteria in s. 23.
32Again, as previously noted, the woodlands which envelope the Subject Lands are considered significant and, accordingly, a NHE is required and was provided in support of the Application. Repeating his previous testimony, Mr. Larkin noted that the NHE concluded that the proposed garage would nominally protrude into the edge of an unhealthy red pine plantation in a location which is well-removed from any other Key Natural Heritage Feature or Hydrologically Sensitive Feature. The NHE further advised that the overall woodlot will be improved through the addition of native trees and vegetation to offset any tree removal. Once again, a set of recommendations was included in the NHE to be implemented to ensure no negative ecological impacts are caused.
33In conclusion, Mr. Larkin testified that the proposed accessory building conforms to the policies of the ORMCP, with the proposed accessory use being subordinate to the main use (residential) and the NHE concludes that the proposed accessory building will not impact ecological features associated with the site and will ultimately improve the woodlot through the planting of additional trees and vegetation. He therefore opined that conformity to the ORMCP has been established.
County of Simcoe Official Plan
34Mr. Larkin testified that the Subject Lands are recognized as "Countryside Area" by the CSOP, and a review of the proposed garage in light of the CSOP identifies relevant policies in s. 3.11 that guide development within the Oak Ridges Moraine and the Countryside Area designation, as well as s. 3.3.15 which provides guidance to development and site alteration in and around Natural Heritage Features.
35Mr. Larkin testified that the CSOP does not permit development or site alteration within or adjacent to significant woodlands unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions (policy 3.3.15). Once again, a NHE was undertaken to evaluate the proposal with regards to the ecological features on the Subject Lands, concluding that the location of the garage would only nominally protrude into the edge of an unhealthy red pine plantation and is well-removed from any other Key Natural Heritage Feature or Hydrologically Sensitive Feature. The NHE further advised methods to offset tree removals that will be part of the proposed development.
36Mr. Larkin testified that Countryside Areas are areas of existing rural land uses which may include agriculture, recreation, hamlets, mineral aggregate operations, park and open space. The CSOP reflects the ORMCP by permitting residential uses and accessory uses as permitted in Countryside Areas (policy 3.11.3 (c)).
37Mr. Larkin testified that s. 3.11.6 and 3.11.7 require that key natural heritage features and hydrologically sensitive features be identified through an appropriate study prior to undertaking any development or site alteration and no development is permitted within these features or their vegetative protective zones. S. 3.11.11 requires that development identify design and construction practices that support connectivity (as per s. 20 of the ORMCP) with adjacent Natural Core Areas and Natural Linkage Areas. Significant Woodlands are subject to the policies of s. 3.3.15 (Natural Heritage).
38Once again, the NHE comes into play to confirm if any natural heritage features are associated with the Subject Lands and to ensure these features or their ecological function will not be impacted by the development of the accessory structure. The NHE confirmed that the proposed location minimally protrudes into an unhealthy red pine plantation, is well-removed from any other Key Natural Heritage Features or Hydrologically Sensitive Features, and the overall woodlot will be improved through the addition of native trees and vegetation to offset tree removals that will be part of the proposed development.
39For the above reasons, Mr. Larkin confirmed that conformity to the CSOP has been established.
Township of Adjala-Tosorontio Official Plan
40Mr. Larkin testified that the Subject Lands are within the rural area of the TATOP and are designated as Countryside Area (Figure 5: Township of Adjala-Tosorontio Schedule E-2 ORM Land Use). Mr. Larkin identified the following policies as being relevant in the present case:
Section 3 - Agricultural and Rural Character
Section 4 - Land Use Designations
Section 6 - Conservation, Hazard and Natural Heritage Policies
41Mr. Larkin opined that the preservation of the rural character is an important theme of the TATOP, prioritizing the preservation of the open, natural appearance of the Township's countryside. He further testified that the land uses within the surrounding area are predominantly rural and agricultural with single detached homes as well as accessory buildings similar to the existing and proposed buildings on the Applicant's land.
42Mr. Larkin noted that s. 4.12 of the TATOP provides the land use policies for the Countryside Area designation that applies to the Subject Lands, and the policies in this section mirror the policies he addressed regarding the ORMCP and CSOP associated with permitted uses, environmental impacts and mitigation measures, and need for a NHE. Guidelines for NHE's are included and mirror the guidelines in the ORMCP and CSOP.
43Hazard and Natural Heritage Policies of the TATOP are provided to address lands with constraints to development, such as Hazard Lands and significant natural heritage features that require protection (policy 6.2.1). Regarding the Subject Lands, Mr. Larkin confirmed that a portion is subject to regulation by the Nottawasaga Valley Conservation Authority and, accordingly, he noted a permit is likely required prior to a building permit being issued for the proposed structure.
44In summary, Mr. Larkin confirmed that the proposed accessory structure conforms to the policies of the TATOP as the use is permitted and is in keeping with the surrounding area.
Summary and Conclusion
45The Tribunal accepts Mr. Larkin’s uncontested evidence and opinion and finds that the proposed ZBA meets the requirements of the Act, is consistent with the PPS, conforms to the Growth Plan, the ORMCP, the CSOP and TATOP, and generally represents good land use planning.
ORDER
46THE TRIBUNAL ORDERS that;
- The appeal is allowed, in part, and By-law 03-56 of the Township of Adjala-Tosorontio is amended as follows (Schedule 1 referred to below is attached as Schedule 1 of this Decision and Order of the Tribunal):
i. That Schedule “A-1” of By-law No. 03-56, as amended, is hereby further amended by changing the zoning on Part of Lot 5, Concession 3, geographic Township of Adjala, from the Oak Ridges Moraine Countryside Zone to a Site Specific Zone Oak Ridges Moraine Countryside Zone Exception 19 Zone as shown on the attached Schedule 1;
ii. That s. 14.0 – Site Specific Zone Exceptions for the Oak Ridges Moraine Countryside Zone in By-law No. 03-56, as amended, is hereby further amended by adding the following:
Section 14.0 Part Lot 5, Concession 3 Schedule A-1, Part of Lot 5, Concession 3, geographic Township of Adjala.
Notwithstanding any provision to the contrary of this By-law, the following altered provision shall apply to the lands zoned ORM CS – 19:
An accessory structure of 140m2 shall be permitted in the front yard with a minimum setback of 102 m;
All other provision of the Oak Ridges Moraine Countryside Zone continue to apply.
- The Tribunal authorizes the municipal clerk of the Township of Adjala-Tosorontio to assign a number to this By-law for record keeping purposes.
“K.R. Andrews”
K.R. ANDREWS
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.
SCHEDULE 1