Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 08, 2023
CASE NO(S).: OLT-21-001898
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Chantelle Laframboise & Michel Bodson
Subject: Consent - refused by Approval Authority
Description: To sever two new residential lots - minor variance for relief of lot frontage
Reference Number: B8/21
Property Address: 27 Pine River Road
Municipality/UT: Essa/Simcoe
OLT Case No.: OLT-21-001898
OLT Lead Case No.: OLT-21-001898
OLT Case Name: Bodson v. Essa (Town)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Subject: Minor Variance
Description: Minor variance for relief of lot frontage
Reference Number: A11/21
Property Address: 27 Pine River Road
Municipality/UT: Essa/Simcoe
OLT Case No.: OLT-21-001899
OLT Lead Case No.: OLT-21-001898
Heard: October 23, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Chantelle Laframboise & Michael Bodson
M. Wynia*
Township of Essa
P. Lombardi
DECISION DELIVERED BY A. MASON AND KURTIS SMITH AND ORDER OF THE TRIBUNAL
Link to Order
BACKGROUND
1Chantelle Laframboise and Michael Bodson (“Appellant”) are the owners of the property municipally known as 27 Pine River Road within the Township of Essa (“Subject Lands”). To permit the creation of two new lots for single detached dwellings (the “Severed West Lot” and “Severed East Lot”) and a retained lot with an existing single detached dwelling between the two new lots (“Retained Lot”), the Appellant filed an application with the Township of Essa (“Township”) for enabling minor variances (“Minor Variance Application”). The Minor Variance Application sought relief from the minimum lot frontage requirement for the Severed West Lot and the Retained Lot. The Appellant also filed an application seeking Consent to sever the Subject Lands into the three separate residential lots (“Consent Application”), if the requested minor variances were granted (together “Applications”).
2The Township’s planning staff provided a planning and development report, dated November 26, 2021 (“Staff Report”) to the Committee of Adjustment (“COA”). The Staff Report recommended that the Applications be denied based on comments received from the Nottawasaga Valley Conservation Authority (“NVCA”) dated July 22, 2020 (“NVCA Initial Comments”).
3The NVCA Initial Comments set out that the Subject Lands were partially situated with the regulatory floodplain of the Pine River. As a result, the Staff Report stated that approval of the Applications would not be in conformity with Section 3.1.1 of the Provincial Policy Statement, 2020 ("PPS") and Section 4.5.4 and Section 4.5.9 of the County of Simcoe Official Plan (“County OP”) that direct development away from water related hazards, such as flooding. The Staff Report found that the Applications met all other policy criteria for the Minor Variance Application.
4The COA followed the recommendation in the Staff Report and the Applications were denied on the basis that they contravened applicable Provincial and local policy directing development away from hazard lands. The Appellant appealed the decision of the COA on the minor variances (“Minor Variance Appeal”) and the related Consent (“Consent Appeal”) to the Ontario Land Tribunal (“Tribunal”) on December 17, 2021 (together “Appeals”). The basis of the Appeals was that the Township relied on incorrect information as it relates to the hazard land area on the Subject Lands as set out in the NVCA Initial Comments.
5The Tribunal was advised shortly before the hearing event that the Parties had resolved their outstanding issues about the NVCA Initial Comments and had reached a settlement with executed Minutes of Settlement, dated October 13, 2023 (“Minutes”). The Parties requested that the hearing event be converted to an uncontested de novo Hearing of the Minor Variance Appeal and a Hearing to consider a settlement proposal of the Consent Appeal.
SITE CONTEXT AND PROPOSAL
6The Subject Lands are 0.68 hectares and are within the settlement area of Angus in the Township of Essa Official Plan (“Township OP”) and are zoned as Residential, Low Density in the Township of Essa Zoning By-Law 2003-05 (“Township ZBL”). There is currently an existing single detached residential dwelling serviced by municipal water and private on-site sewage facilities on the Subject Lands that will remain on the Retained Lot. Surrounding uses consist of low-density housing to the north and east, the Canadian Forces Base Borden to the southwest and a school.
7The Consent Application contemplates two severances resulting in the creation of the Severed West Lot and Severed East Lot fronting on Pine Valley Road, of approximately 0.08 hectares each. Both are to be developed in the future as single detached residential uses. The location of the existing driveway and lot frontage of the Retained Lot is between the Severed West Lot and Severed East Lot.
8The Township ZBA requires lot frontage of 18.8 meters, where a lot is on full municipal services, or a frontage of 23 meters where a lot is on partial municipal services. The Minor Variance Application is required to permit the reduction in lot frontage on the Severed West Lot due to the termination of Pine River Road at the southwest of the Subject Lands. The minor variance for the Severed West Lot requests a reduction of lot frontage to 11.7 m, being a variance of 6.3 m. The second minor variance is to permit the reduction in lot frontage of the Retained Lot on partial services to 18.8 m, being a variance of 4.2 m. No minor variances are required for the Severed East Lot.
APPLICABLE TESTS
9Where there is a minor variance and Consent application together, the Tribunal must consider the minor variance first as it is the granting of the variances that enable the requested severances to be in compliance with the relevant zoning by-law and thereby meet the tests of “good planning”.
Application for Minor Variance
10When considering a proposed minor variance, in accordance with Section 45(1) of the Act, the Tribunal must be satisfied that the minor variances:
Maintain the general intent and purpose of the Township OP;
Maintain the general intent and purpose of the Township ZBL;
Are desirable for the appropriate development or use of the land; and
Are minor in nature.
11All four elements must be satisfied.
Application for Consent
12When considering an application for Consent, the Tribunal must be satisfied that a plan of subdivision is not necessary for proper and orderly development, and that the Township can proceed by way of Consent. Upon satisfaction of this criteria, the Tribunal must then have regard to the criteria set out in section 51(24) of the Planning Act (“Act”), including whether the proposed Consent is premature or in the public interest; whether there is conformity to the County OP and the Township OP and applicable Zoning By-laws; the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services. Pursuant to section 53(12) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed Consent. Finally, in general, the Tribunal will decide whether the proposed Consent, along with any required conditions, are representative of good planning and in the public interest.
EVIDENCE
13The Parties jointly submitted the evidence of Ms. Samantha Anderson, a Planner with the Appellants’ planning consulting firm, in support of the uncontested Hearing of the Minor Variance Appeal and proposed settlement of the Consent Appeal. Ms. Anderson’s curriculum vitae and Acknowledgement of Experts Duty (schedule A to Exhibit 1), as well as her carriage of the file since filing of the Appeals, were reviewed by the Panel. Although not a Registered Professional Planner, the Tribunal was satisfied that Ms. Anderson had the appropriate knowledge and involvement with the file and qualified her to provide land use planning opinion evidence on the matter at hand. Ms. Anderson provided an affidavit to supplement her oral testimony (Exhibit 1).
14The witness explained that since filing the Appeals, the Appellant had undertaken additional floodplain mapping and technical hydrological work in consultation with the NVCA (“Floodplain Work”). In accordance with Section 3.1.6. of the PPS, where a two-zone concept for floodplains is applied, development (including lot creation) and site alteration may be permitted in the flood fringe, subject to appropriate floodproofing to the flooding hazard elevation. The Floodplain Work demonstrated, and the NVCA accepted, that the Proposed Lots are located within the flood fringe and not the floodplain. As a result, the NVCA issued updated comments to the Township supporting the Consent Application (“NVCA Second Comments”) and provided specific conditions for development that form part of the Order, set out at Attachment 1 herein.
15The witness opined, and the Minutes codify, that the NVCA Second Comments conclusively resolve the differences between the Parties with respect to the Consent Appeal.
16The witness provided evidence in harmony with the Staff Report demonstrating how the Proposed Lots meet each of the four minor variance tests, as follows:
The general intent and purpose of the County OP and Township OP are maintained since growth is directed to the settlement area of Angus and will contribute to new housing stock with two new low density residential lots within the flood fringe that are capable of appropriate development;
The minor variances maintain the general intent and purpose of the Township’s ZBL by providing appropriate lot frontages for the single detached residential uses and maintaining the character of the neighbourhood and appropriate distances to neighbours;
With the resolution of the NVCA floodplain concern, the minor variances are appropriate and desirable for the appropriate development of the land for two new low density residential lots; and
The variances are minor in nature as they are only with respect to lot frontages of the Severed West Lot and Retained Lot and development may proceed that respects appropriate separation to neighbouring uses.
FINDINGS
17Having heard the uncontested, sworn and oral evidence of Ms. Anderson the Tribunal is satisfied that the initial concern of the COA that the Applications would permit development in hazard lands in contravention of applicable Provincial and local policies has been resolved. The Tribunal further accepts the evidence of the witness and agrees that that the requested minor variances satisfy the four tests set out in Section 45(1) of the Act; namely: (1) they maintain the general intent and purpose of the Township OP; (2) they maintain the general intent and purpose of the Township ZBA; (3) they are desirable for the appropriate development of the Subject Lands; and (4) are minor in nature. The Tribunal finds that the requested variances have regard for the Provincial interests expressed in section 2 of the Act and are consistent with the PPS.
18Being satisfied as to the appropriateness of the Minor Variance Appeal and resolution of the NVCA floodplain, the Tribunal is satisfied that the severance of the Subject Lands, as contemplated in the Minutes, aligns with matters of Provincial, regional, and local planning policy which guide intensification and orderly development and constitute good planning. As such, the Tribunal grants the Consent Appeal and finds that the conditions set out in the Minutes are reasonable, have regard to the nature of the proposed Consents and will be imposed accordingly.
ORDER
19THE TRIBUNAL ORDERS that the Appeals are allowed:
20The requested minor variances to Zoning By-Law No. 2003-05 are authorized; and
21Provisional Consent is given, subject to the conditions contained in Attachment 1 to this Order.
“A. Mason”
A. MASON
MEMBER
“Kurtis Smith”
KURTIS SMITH
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.
Attachment 1
- The lands identified as the Severed West Lot and Severed East Lot shall be severed from the Subject Lands and the following conditions shall apply:
Certificate of Consent
a. The Certificate of Consent under section 53(42) of the Planning Act must be given within two (2) years of the date of the Ontario Land Tribunal Order approving the severance, dated Wednesday, November 08, 2023. The request for the Certificate of Consent to the Township shall be accompanied by a written submission that details how each of the conditions of consent has been fulfilled;
b. The Certificate of Consent fee of the Township must be paid in accordance with the Township’s Fees and Charges By-law as may be amended from time to time.
Reference Plan
c. The Owner shall case a Reference Plan to be prepared by an Ontario Land Surveyor showing the Severed West Lot, Severed East Lot and Retained Lot, any required land dedication, and the location of all buildings and structures, including their setbacks from the property lines and the location of the municipal water and sanitary connections, hydro lines, and entrances be submitted to the satisfaction of the Township prior to being deposited at the Land Registration Office;
d. Once deposited with the Land Registration Office the Owner shall submit two (2) copies and a PDF of the Registered Plan to the Township;
Property Taxes
e. The Owner shall pay any outstanding property taxes for the Severed West Lot, Severed East Lot and Retained Lot in full;
Nottawasaga Valley Conservation Authority
f. The registered owner of the Severed West Lot and Severed East Lot shall confirm with the Township that the Nottawasaga Valley Conservation Authority (the “NVCA”) has confirmed in writing its compliance with the safe access requirements for the Severed West Lot and Severed East Lot through the submission of a topographic survey with the proposed driveway access and, if required by the NVCA, enter into an agreement with the NVCA setting out any additional requirements that must be met. Such confirmation shall be provided to the Township by the NVCA in writing prior to the Township issuing the Certificate of Consent;
Minor Variance – Lot Frontage
g. The Owner shall ensure that the minor variance for a reduced frontage for the Severed West Lot and Retained Lot that are approved in the Ontario Land Tribunal’s Order dated Wednesday, November 08, 2023 are duly recorded and implemented by the Township’s Zoning By-law; The permitted frontage for the Retained Lot shall be 18.8 meters and for the Severed West Lot shall be 11.7 meters and Severed East Lot shall be 18.3 meters;
Municipal Address and Signage
h. The Severed West Lot and Severed East Lot shall be issued a new Township 9-1-1 address and signage posted to the satisfaction of the Township and the upper-tier Simcoe County;
Non-Encroachment
i. The Owner shall confirm to the satisfaction of the Township that the existing municipal water and sanitary services and phone/cable/gas services on, under or above the Retained Lot are wholly located on, under and above the Retained Lot and do not encroach on the Severed West Lot or Severed East Lot.