Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 02, 2022
CASE NO(S).: OLT-22-003160
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Fatemeh Dana-Mansouri Subject: Minor Variance Description: To permit cottage rental use by reducing on-site amenity area, parking stalls, and parking area setback. Reference Number: A-02/22 Property Address: 35 Delater Street Municipality/UT: Niagara-on-the-Lake/Niagara OLT Case No: OLT-22-003160 OLT Case Name: Mansouri-Dana v. Niagara-on-the-Lake (Town)
Heard: July 8, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Fatemeh Dana-Mansouri | Zachary Fleisher |
| Town of Niagara-on-the-Lake | Karen Shedden |
DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Fatemeh Dana-Mansouri (“Appellant”) filed an application to the Town of Niagara-on-the-Lake (“Town”) Committee of Adjustment seeking variances to the Town’s Comprehensive Zoning By-law No. 4316-09, as amended (“Zoning By-law”). The application is in relation to the property located at 85 Delater Street (“subject property”).
2The Appellant seeks the following variances:
a reduced minimum on-site amenity area of 83.13 square metres (“m2”) to operate a cottage rental, whereas the Zoning By-law requires 135 m2;
a minimum of one legal parking stall on-site to operate a cottage rental, whereas the Zoning By-law requires two parking stalls available on-site to operate a cottage rental; and
a minimum parking area setback from an interior lot line of 0.5 metres (“m”), whereas the Zoning By-law requires 1 m.
3The subject property has been used in the past as a short-term rental property, but the Appellant did not have a licence to do this. To address this issue, the Appellant applied for a licence. The application was refused by the Town as the subject property did not comply with the Town’s zoning standards for cottage rentals.
4The subject property has a 1.5 storey single-detached dwelling located on it. A portion of the dwelling as well as a deck, a shed, and portions of the rear yard encroach on parkland located adjacent to the subject property. As noted above, the subject property also does not have the required amenity space, number of parking stalls, or parking area setbacks for compliance with the applicable zoning standards for cottage rentals.
5No new development is presently proposed on the subject property.
6On January 6, 2022, the Appellant applied for the above-noted variances to address the non-compliance issues.
7On March 17, 2022, the Town’s Committee of Adjustment refused the requested variances.
8On April 1, 2022, the Appellant appealed the Committee of Adjustment’s decision to the Tribunal.
9On June 28, 2022, the Parties reached a proposed settlement of the appeal and subsequently requested that the Tribunal convene a settlement hearing.
10On July 8, 2022, the Tribunal held a settlement hearing by video hearing to consider the proposed settlement.
ISSUES
11The issues to be determined by the Tribunal include whether or not the proposed variances meet the four tests under s. 45(1) of the Planning Act. In the context of the present case, these tests are:
do the proposed variances maintain the general purpose and intent of the Niagara Region Official Plan and the Town’s Official Plan?
do they maintain the general purpose and intent of the Zoning By-law?
are they desirable for the appropriate use of the subject property?
are they minor?
12The proposed variances must also be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”). When making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and it must have regard to the decision of the Committee of Adjustment and the information considered by it, as required under s. 2.1(1) of the Planning Act.
EVIDENCE AND SUBMISSIONS
13In support of the proposed settlement, the Parties filed an affidavit affirmed by Melinda MacRory, dated July 7, 2022. She is a land use planner retained by the Appellant. She also attended the settlement hearing and gave evidence. The Tribunal qualified her to provide opinion evidence in the area of land use planning.
14Ms. MacRory stated that the proposed settlement sets out the following requirements:
the approval of the three variances by the Tribunal shall be subject to a condition pursuant to section 45(9) of the Planning Act, as amended, that the approval is to permit the operation of the subject property as a two-bedroom cottage rental only;
the Appellant shall be required to enter into an encroachment agreement with the Town with respect to the encroachments onto the Town's property shown on the site plan drawing attached as Schedule "A" to the proposed Minutes of Settlement;
the Appellant agrees that all licenses issued for the operation of the cottage rental at the subject property shall be restricted to the operation of a two-bedroom cottage rental;
the Appellant agrees that all advertising for the cottage rental at the subject property shall specify that it is a two-bedroom cottage and that only one parking space is available on-site; and
the Appellant agrees that the Town shall be permitted to register an Agreement or Notice of Agreement on title to the Subject Property pursuant to Section 45(9.2) of the Planning Act as amended.
The Tribunal has attached the Minutes of Settlement as Schedule 1 to this Order and Decision.
15Ms. MacRory first provided her opinion on whether the proposed variances meet the tests set out in s. 45(1) of the Planning Act. She opined that, based on the proposed settlement conditions, the proposed variances maintain the general purpose and intent of the Niagara Region Official Plan. She stated that the subject property is designated as "Built-Up Area" in the Region’s Official Plan, which permits dwellings such as that located on the subject property. She said the Niagara Region Official Plan addresses the importance of tourism and the Region's economy and encourages the expansion of tourism opportunities in Built-Up Areas, such as on the subject property.
16She also opined that, based on the proposed settlement conditions, the proposed variances maintain the general purpose and intent of the Town’s Official Plan. She stated that the subject property is designated "Established Residential" and "Built-up Area" and lies within the "Delater Neighbourhood District" under the Town’s Official Plan. She said the area has predominantly low density residential uses, including several short-term rental uses located in it. She said the subject property has sufficient parking and outdoor amenity space for a two-bedroom rental unit. She stated that, with the inclusion of the conditions set out in the proposed settlement that restrict the uses on the subject property to a two-bedroom cottage rental, the proposed variances would satisfy the Official Plan’s criteria for cottage rentals, including criteria relating to parking, outdoor amenity space, and signage. She noted that as a condition to the proposed settlement, signage for the cottage rental would not be permitted on the subject property.
17Ms. MacRory opined that, based on the proposed settlement conditions, the proposed variances maintain the general purpose and intent of the Zoning By-law. She stated that the subject property is zoned as "Established Residential (ER3) Zone", which permits cottage rentals, subject to specific criteria, including those addressing the number of proposed bedrooms, parking, amenity area, uses, and licencing. She stated that based on the proposed settlement, these criteria are satisfied. She stated that only a change of use is proposed on the subject property and that, although encroachments on Town property have been identified, they are existing conditions. She said that, as part of the proposed settlement, the Appellant would enter into an encroachment agreement with the Town to legalize these existing conditions.
18Ms. MacRory opined that, based on the proposed settlement conditions, the proposed variances are desirable for the appropriate use of the subject property. She reiterated that they solely facilitate a change from single-detached dwelling to a cottage rental use and would not facilitate any construction on the existing property. She said cottage rental uses support tourism and the Town's economy and there is sufficient parking and amenity space on the subject property based on the size of the proposed cottage rental. She said the proposed reduced setbacks would legalize an existing condition and existing landscaping around the parking area provides transition to adjacent parkland.
19Ms. MacRory opined that, based on the proposed settlement conditions, the proposed variances are minor from both numeric and impact perspectives. She said the proposed reductions in the parking, setback, and amenity space requirements are not significant, reflect existing conditions, are appropriate for the size of the proposed rental use, and do not cause undue adverse impacts on neighbours.
20Ms. MacRory also opined that the proposed variances are consistent with the PPS in that the subject property lies within a settlement area and the proposed variances would facilitate economic growth and an efficient use of land and existing infrastructure. She said the subject property is within walking distance of restaurants, parks, and other amenities.
21Ms. MacRory said the proposed variances conform with the Growth Plan. She said the subject property is located within the Town’s delineated built boundary and the proposed use supports the achievement of a complete community by contributing to the local tourism sector and economy.
22She stated that the proposed variances have regard for the matters of provincial interest set out in s. 2 of the Planning Act in that they would facilitate the orderly development of a safe and healthy community, help facilitate the protection of the economic well-being of the area through increased tourist accommodation, and resolve planning conflicts by legalizing rental uses on the subject property.
FINDINGS
23The Tribunal finds that based on Ms. MacRory’s uncontested opinion evidence, and the conditions in the proposed settlement, the proposed variances satisfy the four tests in s. 45(1) of the Planning Act, are consistent with the PPS, conform with the Growth Plan, and constitute good planning. The Tribunal has had regard to the matters of provincial interest in s. 2 of the Planning Act and the decision of the Town’s Committee of Adjustment and the information that the Committee had before it.
ORDER
24The Tribunal orders that the appeal is allowed and the proposed variances to the Town’s By-law No. 4316-09, as amended, are authorized subject to the condition that the operation of the subject property is as a two-bedroom cottage rental only.
“Hugh S. Wilkins”
HUGH S. WILKINS
MEMBER
Ontario Land Tribunal
Website: 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.