Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 17, 2022

CASE NO(S).: OLT-22-004093

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

Appellant: Peter Draper

Applicant: Manola Salvi & Michael Lafontaine

Subject: Minor Variance

Description: Requesting minor relief of 0.41 m (1.34 ft) in accessory structure interior side yard setback

Reference Number: A/11/21

Property Address: 941-945 Front Road N

Municipality/UT: Amherstburg/Essex

OLT Case No: OLT-22-004093

OLT Lead Case No: OLT-22-004093

OLT Case Name: Draper v. Amherstburg (Town)

Heard: September 29, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Manola Salvi (“Applicant”)	Michael Coughlin
Town of Amherstburg	Jeff Nanson
Peter Draper (“Appellant”)	Self-Represented

MEMORANDUM OF DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision concerns the hearing of the Appeal by Peter Draper (the “Appellant”) pursuant to s. 45(12) of the Planning Act (the “Act”) for the property municipally known as 941-945 Front Road North (the “Subject Property”), in the Town of Amherstburg.

2The minor variance application is requesting relief of 0.41 metres (“m”) under s. 3(1)(d)(i) of Zoning By-law No. 1999-52, as amended, which permits a building or structure accessory to a single dwelling, anywhere in an interior side yard or a rear yard, provided that such accessory building or structure is not located closer than 1.2 m to any lot line in a Residential Zone.

3The Town of Amherstburg (the “Town”) Planning Staff recommended the approval of the minor variance requested as the opinion of the Planning Staff was that the minor variance did meet the four tests as set out in s. 45 of the Act. The Town of Amherstburg Committee of Adjustment (the “Committee”) approved the Application with two conditions.

4The Subject Property is zoned “Low Density Residential”, Residential Type 1A (R1A), under the Zoning By-law.

5The Applicant received a building permit and constructed an addition to a pre-existing pool house structure, based on the survey that was supplied to the Applicant when the home was purchased. An updated survey was submitted to the Town by the Appellant after the construction process had almost been completed indicating that the addition is within the interior side yard setback.

6After consulting with the Town of Amherstburg Planning Staff concerning the new updated side yard setback, it was the recommendation of the Staff that the Applicant undergo a minor variance process in order to have the new building conform to the Zoning By-law.

7The Application was presented to the Committee meeting on June 7, 2022. At this meeting the Applicant and their Agent, Dan Krutsch of Landmark Engineers Inc. presented the application and the Appellant also appeared in opposition. After reviewing the application, taking into account all the comments from all the appropriate agencies Planning Staff and the public, the Committee approved the application with conditions. These conditions were:

That the Chief Building Official conduct an inspection prior to construction commencing to ensure work done to date complied with the Ontario Building Code.

That a final drainage report be completed and implemented to the satisfaction of the municipality prior to the building permit being finalized.

Legislative Framework for Minor Variance Appeals

8Pursuant to s. 45(1), the Tribunal must be satisfied that the requested minor variances:

a) maintain the general intent and purpose of the Official Plan;

b) maintain the general intent and purpose of the City’s ZBL;

c) are minor in nature; and

d) are desirable for the appropriate development or use of the land, building or structure

9Additionally, the Tribunal must be satisfied that the variances are consistent with the Provincial Policy Statement; have regard to matters of Provincial interest and, in making its decision, the Tribunal must have regard to the decision of the approval authority and the information that was before it when making its decision.

DAY OF THE HEARING

10The following items were entered as evidence to the hearing:

Exhibit #1: Combined Municipal Record

Exhibit #2: Landmark Drainage Report

Exhibit #3: Town of Amherstburg Evidence Brief

Exhibit #4: Appellant Presentation

EVIDENCE

11Mr. Coughlin (representing the Applicant) stated in his opening statement that the initial building permit was issued based on the sketches and survey submitted to the building department. At the time of the permit approval (August 2020), the new pool house structure did meet all the requirements of the building department and met all the setback requirements. The Appellant submitted a new survey to the Town in October 2021 showing that the new structure was within the side yard setback requirement. Construction of the pool house has not been completed due to the need for the approval of a minor variance application.

12The Town’s Legal representative, Mr. Nanson, called Janine Mastronardi who was affirmed to give factual information that was contained in the report to the Committee.

13Ms. Mastronardi confirmed that she was the writer of the report to the Committee. The report was presented to the Committee at the meeting of June 2, 2022. Her report was the basis in which the Committee came to its decision to approve the Application.

14Mr. Draper confirmed through the witness that the updated survey received by the Town was completed by his surveyor. She confirmed that the building permit was issued in August 2020 and the updated survey was received in October 2021.

15Mr. Nanson then called the Town of Amherstburg Building Inspector, Angelo Avolio. Mr. Avolio was affirmed to give factual evidence as to the building permit application. He confirmed that the initial building permit application was deemed complete based on the documents received, including the survey that the owners had in their possession at the time of the permit application.

16Mr. Nanson lastly called Dr. Christopher Aspila, Manager, Planning Services with the Town of Amherstburg. Dr. Aspila holds a Doctorate of Philosophy degree in Civil Engineering and is a Registered Professional Planner in Ontario, and has been a Member of the Canadian Institute of Planners since 2009. Dr. Aspila was affirmed and qualified without dispute to give expert opinion evidence in the area of Land Use Planning.

17In his witness statement, Dr. Aspila’s stated that the Subject Lands are designated “Low Density Residential” in the Town’s Official Plan. Specifically, s. 4.3.1 states:

Areas designated as Low Density Residential shall be limited to single detached, semi-detached, duplex, or converted dwelling units, home occupation uses and public uses.

18Dr. Aspila stated that accessory structures are permitted on lands that have been designated “Low Density Residential”. He opined that in accordance with s. 4.3.2 of the Official Plan, the residential character of the neighbourhood is not impacted. He opined that the purposed use of the property is considered to be keeping with the intent of the Official Plan.

19In the area of the Zoning By-law, Dr. Aspila stated that the Subject Lands are zoned “Residential Type 1A (R1A) in Zoning By-law No. 199-52, as amended. The R1A zoning permits single detached dwellings and accessory structures. Specifically, s. 3(1)(d)(i) states:

Any accessory building or structure shall comply with the zone requirements and all other provisions hereof applicable to the zone in which such accessory building or structure is located, except that nothing in this By-law shall apply to prevent the erection of a building or structure accessory to a single dwelling, anywhere in an interior side yard or a rear yard, provided that such accessory building or structure is not located closer that 1.2 metres to any lot line.

20Dr. Aspila confirmed that the Applicant obtained a building permit in August of 2020 to construct an addition to an existing pool house. Based on the survey and site plan that was submitted, there were not any issues with setbacks as submitted at that time. Based on the new survey that, in turn, was submitted by the Appellant in October 2021, it came to the Town’s attention that the updated pool house structure was now within the side yard setback requirement. The structure would now have a setback of 0.79 m at the closest point to the lot line as shown in the new survey. As such, the Minor Variance Application to permit a 0.41 m reduction in the side yard setback was recommended in order to make the structure conform to the Zoning By-law. In his opinion, the structure complies with the other provisions of the Zoning By-law. As such, the Application maintains the intent of the Zoning By-law.

21Along with his witness statement Dr. Aspila referred to the June 2, 2022 Committee report on this application. In his witness statement and confirming with the report, Dr. Aspila opined that the minor variance request does not change the use of the land for residential use. Therefore, the Application is considered an appropriate use of the Subject Lands.

22Dr. Aspila agreed with the comments in the report that the term “minor” is subjective in nature and must take into account what the development represents. In his opinion, the individual variance requested does not change the character of the neighbourhood and the streetscape is not affected by the Application. Therefore, Dr. Aspila agreed with the report that the Application is minor in nature.

23As for the water runoff issues that were brought up by the Appellant, Dr. Aspila opined that the Landmark Engineer’s report had recommendations that would satisfy these issues if the Application was approved. These recommendations were conditions of the original approved Application at the Committee meeting.

24In Dr. Aspila’s opinion, the Application conforms to the County of Essex Official Plan and the Town of Amherstburg Official Plan. The Application maintains the intent of Zoning By-law No. 1999-52, as amended, does not change the use of the Subject Lands and is minor in nature. The Application represents good land use planning.

25Mr. Draper was called as a witness to give a statement and presentation of his arguments as to why the appeal should not be granted.

26Mr. Draper gave a presentation detailing evidence concerning the building permit process and the issue with the survey provided by the Applicant.

27Mr. Draper also stated concerns about the building inspection process as there has not been a record of any inspections of the new building up to the time of this hearing.

28Mr. Draper’s final concern pertained to the stormwater runoff onto this property. His concern is that the current water runoff will not be corrected by the recommendations of the Landmark report.

FINDINGS AND CONCLUSIONS

29Mr. Draper’s evidence focused on the building permit application and process, which is not within the power of the Tribunal to rule on.

30Even though Mr. Draper gave a robust presentation of evidence, he did not provide any evidence from a land planning context. He was not able to provide any evidence or opinion evidence through a land planning professional to contravene the evidence provided by Dr. Asplia. As such, the Tribunal accepts the unrefuted evidence of Dr. Aspila.

31Dr. Aspila’s opinion evidence demonstrated that the Applicant has met the four tests as set out in s. 45(1) of the Planning Act. As such, the Tribunal is satisfied that the Application maintains the general intent and purpose of the Official Plan, maintains the general intent and purpose of the Zoning By-law, is minor in nature and is a desirable and appropriate development of the land.

32The Tribunal has given regard to the initial decision of the Committee and the information considered by it.

ORDER

33THE TRIBUNAL ORDERS that the appeal is dismissed and the variance to By-law No. 1992-52, as amended, is authorized, subject to the conditions imposed by the Committee of Adjustment’s decision of June 7, 2022.

“S. deBoer”

S. deBOER

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.