2573342 Ontario Inc. v. Aurora (Town), 2022 CanLII 9917

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 08, 2022

CASE NO(S).: OLT-21-001918 (Formerly PL200042)

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

Applicant and Appellant: 2573342 Ontario Inc.

Subject: Minor Variance

Variance from By-law No.: 6000-17

Property Address/Description: 107 Ridge Road

Municipality: Town of Aurora

Municipal File No.: MV-2019-25

OLT Case No.: OLT-21-001918

Legacy Case No.: PL200042

OLT Lead Case No.: OLT-21-001918

Legacy Lead Case No.: PL200042

OLT Case Name: 2573342 Ontario Inc. v. Aurora (Town)

Heard: January 21, 2022 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

2573342 Ontario Limited (“Appellant” or “Applicant”)

Peter Narduzzi

Town of Aurora (“Town”)

Christina Kapelos*

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

1This is an appeal of the decision by the Committee of Adjustment of the Town (“Committee”) refusing a minor variance application filed by the Appellant, the owner of the property municipally known as 107 Ridge Road, Aurora (“Subject Property”) and having the legal description set out in Schedule “A”.

BACKGROUND

2To address erosion and drainage problems, the Appellant completed various site alterations on the Subject Property prior to November 2017 without securing appropriate permits from the Town. Approximately 1,353 square metres (“m²”) of the Subject Property were regraded, additional fill was added, 15 trees were removed and 16 trees were impacted (“Unauthorized Site Alterations”).

3A notice of violation was issued to the Appellant by the Town’s Building Division regarding the Unauthorized Site Alterations. In November 2019, the Appellant submitted a minor variance application to the Town for the Unauthorized Site Alterations which included a tree restoration program. The minor variance was refused by the Committee based on the recommendations of the Town’s planning department in its report dated December 6, 2019. The Town Planning Report (“Town Planning Report”) was not supportive of the application. The proposed tree remediation plan was considered to be inadequate and the Applicant did not provide sufficient information to allow the Town to complete appropriate due diligence regarding the completed regrading, fill material added, and the impact of the regrading and fill on the septic tank system of the property.

4The Subject Property has a lot area of approximately 1.0 acre (4,047m²) and a lot frontage of approximately 50 metres (“m”) (165 ft). A single storey detached dwelling with an attached garage is present on the Subject Property as well as a retaining wall fronting the south and east property lines that was built as part of the Glen Steeple Trail subdivision. The Subject Property contains mature vegetation (woodlands), primarily within the western portion of the rear yard. Additional trees are generally located along the perimeter of the property.

5The parties have been working collaboratively with a view to settling this matter and were able to conclude a settlement.

6Only the parties and their representatives attended the hearing. There were no status requests filed with the Tribunal relating to the Appeal. The Town presented the Witness Statement of Anna Henriques, Manager Development Planning at the Town dated January 17, 2022 and her oral evidence. Ms. Henriques was properly qualified to present this evidence, she presented her evidence in a clear and forth right manner, it was uncontradicted and found to be credible by the Tribunal.

4. planning regulatory framework

7A complex planning regulatory framework governs the Subject Property since it is located in the Oak Ridges Moraine Conservation area.

8The Subject Property is governed by the Oak Ridges Moraine Conservation Plan (“ORMCP”) which provides land use and resource management planning direction on how to protect the Moraine’s ecological and hydrological features and functions. The Act implementing the ORMCP identifies that it prevails in the event of any conflict with an official plan document.

9There are also three Town Official Plan documents that apply to the Subject Property:

1. The Town Official Plan (“OP”),
2. OP Amendment 35 which implements a secondary plan for the Yonge Street South Secondary Plan area where the Subject Property is located (“OPA 35”), and
3. OP Amendment 48 which amends the OP to address the requirements of an earlier version of the ORMCP. (“OPA 48”)

10The Subject Property is designated ‘Estate Residential’ in the OP and OPA 35 (Yonge Street South Secondary Plan) and in OPA 48 it is designated as a ‘Settlement Area’ of the Oak Ridges Moraine Conservation Plan area permitting urban uses. The Subject Property includes a Key Natural Heritage Feature (“KNHF”), namely a Significant Woodland and is within a Landform Conservation Area (Category 1) as outlined on Schedule ‘E1’ of the Official Plan and Schedules ‘K’ and ‘J’ of OPA 48.

11An objective of the Settlement Area designation is to maintain and improve or restore the health, diversity, size and connectivity of key natural heritage features, key hydrologic features and the related ecological functions.

12The lands are zoned “Oak Ridges Moraine Rural General (RU-ORM)” in By-law 6000-17 (“ZB”), which permits the single detached dwelling on the Subject Property. Development and site alteration is prohibited within a KNHF as identified on Schedule ‘B’. As per Schedule ‘E’ of the ZB, the lands are within a Landform Conservation Area (Category 1). Development and site alteration is permitted within a Landform Conservation Area (Category 1) provided the net developable area of the site that is disturbed does not exceed 25% of the total site area and provided that the net developable area of the site that has impervious surfaces shall not exceed 15% of the total site area.

6. minor variances requested

13The minor variance application requests the following relief from the identified ZB requirements:

a. Section 14.1.2(ii) of the ZB specifies that no development or site alteration shall occur on Lands within a Key Natural Heritage Feature without an amendment to or relief from the Zoning By-law. The Applicant seeks relief to be permitted to fill and regrade areas within a Key Natural Heritage Feature on the Subject Property;

b. Section 14.1.4(i) specifies that no development or site alteration shall occur on lands that contain a Significant Woodland Feature without an amendment or relief from the Zoning By-law. The Applicant seeks relief to be permitted to fill and regrade areas within a Significant Woodland Feature on the Subject Property; and

c. Section 14.4.1(i) specifies that the net developable area of the site that is disturbed in Category 1 Landform Conservation shall not exceed 25% of the total site area. The Applicant seeks relief to be permitted to increase the total disturbed site area to 43%. (collectively the “Minor Variance”)

7. settlement

14Prior to reaching settlement, the Applicant furnished the following reports to the Town:

1. Lot Grading and Drainage Report, dated April 9, 2021, by Schaeffers Consulting Engineers, (“Grading and Drainage Report”)
2. Soil Analysis Report, dated May 11, 2021, by Soil Engineers Ltd. (“Soil Report”)
3. Septic System Report dated, May 9, 2021, by BJH Engineering Ltd. (“Septic Report”)

15It also revised its proposed tree remediation plan as identified in the Tree Restoration Plan, dated September 3, 2021, by The Urban Arborist (“Revised Tree Restoration Plan”).

16Based on the Planning Evidence:

a. The Grading and Drainage Report identifies the prior grading and current grading of the property and confirms that the completed grading works will not impact abutting properties and are generally consistent with the surrounding area.

b. The Soil Report identifies that appropriate fill in compliance with industry standards was used to regrade the property and does not negatively impact the environment or abutting properties.

c. The Septic Report identifies that the regrading and additional fill added to the property have not negatively impacted the functioning of the septic tank system servicing it.

d. The Revised Tree Restoration Plan identifies that the woodland feature and additional trees lost on site and proposes restoring and enhancing the trees lost at a ratio of 3:1. The Applicant proposes agreeing to provide security to ensure that replanting takes place in accordance with the Plan and not to undertake further site alteration within the restored area without approval from the Town. The Tree Restoration Plan will serve to mitigate any potential impacts on the ecological integrity of the Significant Woodland Feature and has been reviewed to the satisfaction of the Lake Simcoe Regional Conservation Authority (“LSRCA”).

17In summary, the City submitted that it has completed its due diligence relating to the reports and Revised Tree Restoration Program and supports the Minor Variance application.

18Overall, Ms. Henriques opined that the Variance: meets the four tests under s. 45 (1) of the Act; has appropriate regard for matters of Provincial interest in s. 2 of the Act; is consistent with the Provincial Policy Statement (“PPS”); conforms to the OP and, in general, constitutes good planning.

8. Minor Variance tests

A. The General Intent And Purpose Of The Official Plan Is Maintained

19The planning evidence identified that the current single family dwelling is permitted by the Estate Residential designation of the OP and 89% of the lot area in an open, landscaped or natural condition which complies with the OPA.

20The Subject Property is located within the Settlement Area of the ORMCP, as per OPA 48 which implements the policies of the ORMCP. Schedule ‘K’ (Map 1) of OPA 48 and Schedule “E1” of the Official Plan identify the lands as containing a KNHF (significant woodland) and its associated minimum vegetation protection zone (MVPZ).

21Removal or destruction of a KNHF is prohibited and where unauthorized removal or destruction of a KNHF takes places, restoration is required, to the satisfaction of the Town and the LSRCA, in accordance with the Town’s Official Plan policies (12.5.2 f).

22The Revised Tree Restoration Plan meets the general intent and purpose of the natural heritage and ORMCP policies of the Official Plan which seek to ensure KNHFs are protected and maintained for the long term while also permitting development to take place.

B. The General Intent And Purpose Of The Zoning By-Law Is Maintained

23The ZB implements the polices of the OP and ORMCP which seek to protect the KHNFS and minimize the disturbance of the site.

24Although 43% of the Subject Property was disturbed, the planning evidence confirms that the reports delivered to the Town satisfactorily demonstrate that the intent and purpose of the ZB are maintained since there has been no net negative impact from the grading and fill and the Revised Tree Restoration Plan will ameliorate the woodlot.

C. Desirable For The Development Or Use Of The Land

25The planning evidence also confirms that the Settlement Proposal if implemented will have a desirable impact on the development or use of the land.

D. Variances Are Minor

26The planning evidence was clear that the variances are minor. The increase of the disturbed area to 43% which exceeds the maximum of 25% stipulated by the ZB is not significant based on the evidence since the impervious area and the dwelling coverages were not increased by the grading and fill.

27The Tribunal accepts the uncontested expert planning evidence and finds the proposed variance, subject to the list of recommended conditions in the Settlement Proposal meets all the relevant legislative tests as discussed above. The variance and conditions will allow the Applicants to retain the original regrading and fill on their property without adverse impacts to neighbouring properties, and the natural heritage features of the Subject Property will be improved by the tree restoration plan.

ORDER

28THE TRIBUNAL ORDERS that the appeal is allowed, in part. The variance to Zoning By-law No. 6000-17 for the Town of Aurora is approved subject to the following conditions:

1. The Appellant restores the woodlot on the Lands described in Schedule “A” in accordance with the Tree Restoration Plan dated September 3, 2021, as attached as Schedule “B” hereto, to the satisfaction of Town staff and by no later than July 1, 2022;

2. The Appellant provides the Town with a security deposit in the amount of $7,000.00 on or before April 1, 2022, to be held by the Town pending the completion of the said restoration;

3. The Appellant pays to the LSRCA a review fee of $500.00 forthwith;

4. The Appellant agrees to comply with and maintain the Lands in accordance with the following reports and plans:

a. Replanting Plan dated September 3, 2021 by The Urban Arborist as attached as Schedule “B” hereto;

b. Lot Grading and Drainage Review dated April 9, 2021 by Schaeffers Consulting Engineers as attached as Schedule “C” hereto;

c. Soil Analysis Report dated May 11, 2021 by Soil Engineers Ltd. as attached as Schedule “D” hereto; and

d. Septic System Report dated May 9, 2021 by BJH Engineering Ltd. as attached as Schedule “E” hereto; and

5. The Appellant agrees that any change in the present development and/or site alteration on the Lands shall not, without first obtaining approval from the Town, disturb more than 25 per cent (25%), or such other amount as may be set out in a subsequent Town by-law, of the total site area of the Lands.

“A. Cornacchia”

A. CORNACCHIA

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.