Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 09, 2023

CASE NO(S).: OLT-21-001444

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

Applicant and Appellant: Ed Yohanna

Subject: Minor Variance

Property Address/Description: 11033 Lakeshore Road

Variance from By-law: 034-2014

Municipality: Township of Wainfleet

Municipal File No.: A11/2021W

OLT Lead Case No.: OLT-21-001444

OLT Case No.: OLT-21-001444

OLT Case Name: Yohanna v. Wainfleet (Township)

Heard: February 9, 2022

APPEARANCES:

Parties	Counsel/Representative
Ed Yohanna	Self Represented
Township of Wainfleet	Sarah Ivins (Township Planner)

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This hearing was convened on February 9, 2022 to consider the appeal by Ed Yohanna (“Appellant”) of 11033 Lakeshore Road for the decision of the Township of Wainfleet (“Township”) Committee of Adjustment (“COA”) made on September 15, 2021 to refuse the minor variance seeking relief from Zoning By-law 034-2014, under s. 45 of the Planning Act, R.S.O. 1990 c. P.13 (“Act”) to permit the addition of a balcony and raised deck onto the accessory building and a small shed.

NEIGHBOURHOOD CHARACTERSITICS

2The Tribunal heard the subject property is known municipally as 11033 Lakeshore Road and is located along the Lake Erie shoreline within the Township of Wainfleet.

3The subject property is designated as Rural Lands under the Provincial Policy Statement and Growth Plan for the Greater Golden Horseshoe (2019), Rural Area under the Region of Niagara Official Plan and Lakeshore Residential, Environmental Conservation Area and Hazard Lands under the Township of Wainfleet Official Plan. The subject property is zoned Residential Lakeshore - RLS.C10 with a Hazard Overlay under Township of Wainfleet Zoning By-law 034-2014.

VARIANCES SOUGHT

4The Tribunal was informed that the Appellant,, in 2014, submitted a minor variance application to permit the replacement of the existing single detached dwelling and accessory building (Township File No. A 13/2014W). The application sought relief from the maximum lot coverage, minimum interior side yard setback as well as the minimum accessory building interior side yard setback and maximum accessory building height. The Committee of Adjustment (“COA”) partially approved the application subject to several conditions. The adjacent property owner appealed the decision and the matter was dealt with by the Ontario Municipal Board (0MB) under Case No. PL 150292. Of relevance to this application, a maximum lot coverage of 11.5% was approved.

5The Appellant subsequently received a Township of Wainfleet building permit for the construction of the new dwelling and accessory building.

6The Tribunal further heard, in 2020, the Appellant applied for a building permit to add a raised deck and stairs to the south side of the accessory building. At the time, Planning staff were of the opinion that this structure contributed towards lot coverage and required a minor variance application.

7The Appellant submitted a minor variance application on June 24, 2021 requesting relief from the following provisions of Zoning By-law 034-2014:

Section of By-Law	By-Law Requirement	Application request
Section 7.21 Table 10 Residential Maximum Lot Coverage	10% (11.5% approved via 0MB decision)	17%
Section 4.21 Table 2 Accessory Building Maximum Lot Coverage	2.5%	6.4%

8These minor variance requests would allow the construction of the proposed raised deck and staircase on the south side of the accessory building and a proposed balcony/porch on the north side of the accessory building as well as recognize existing raised decks attached to the single detached dwelling.

9The Appellant also proposed a small accessory building (shed)and submitted a site plan showing the proposed additions to the accessory building.

10The Tribunal heard that at the COA hearing of July 21, 2021. A staff prepared a planning report recommended that modified lot coverages of 13. 5% and 5. 5% could be supported and met the four tests under Section 45 of the Planning Act.

11At the July 21, 2021 hearing, Mr. Charlton, an adjacent property owner, appeared before the COA to object to staff's interpretation of the Zoning By-law and what buildings/structures should be included in the lot coverage calculation. Mr. Charlton was of the opinion that the proposed raised deck on the south side of the accessory building is considered access to the second floor and can be considered a structure which does not have any lot coverage provisions.

12The COA deferred consideration of the application to allow staff the opportunity to review what buildings/structures contributed towards lot coverage and to confirm what lot coverages were needed to support the Appellant’s development plans which included the proposed raised deck and staircase on the south side of the accessory building, balcony/porch on the north side of the accessory building and a shed.

13The Tribunal was informed a review of the definitions within Zoning By-law 034-2014 was conducted and that the current language in the Zoning By-law did not allow for raised decks and structures which do not provide shelter or accommodation for persons, animals or goods to be included in lot coverage calculations. As such, a lot coverage increase would only be needed to allow for the proposed balcony/porch on the north side of the accessory building and the new shed.

14The Appellant was notified of the review and was advised that a maximum lot coverage of 13.9% and maximum accessory building lot coverage of 5.8% would be required to permit his development plans.

15The Appellant informed that he would like to add a covered porch on the north side of the dwelling and a covered deck on the south side of the dwelling. This would require a maximum lot coverage of 17.99% and maximum accessory building lot coverage of 5.8%.

16The Appellant further informed that he would like to proceed with lot coverages for the proposed balcony/porch on the north side of the accessory building and a covered porch on the north side of the dwelling, eliminating the proposed shed and covered rear yard deck. This would require a maximum lot coverage of 14% and maximum accessory building lot coverage of 4.4%.

17Staff prepared an updated review outlining the changes the Appellant requested for the consideration of the COA hearing of August 18, 2021.

18The Tribunal heard that at the August 18, 2021 COA hearing, the Appellant proposed additional combinations for development options. The discussion concluded with the Appellant confirming that he would like enough lot coverage to allow for the balcony/porch on the north side of the accessory building, shed and covered porch on the north side of the dwelling. This would require a maximum lot coverage of 15.4% and maximum accessory building lot coverage of 5.8%.

19The COA deferred consideration of the application to the September 15, 2021 hearing and requested that the Secretary - Treasurer circulate a new Notice of Hearing containing the revised lot coverage requests, as agreed to by the Appellant.

20The COA felt that the latest proposal constituted a significant change in the intent of the original application and that re-circulation would allow for further public consultation.

21The Secretary - Treasurer issued a new Notice of Hearing on August 26, 2021 which included the revised lot coverages of 15.4% and 5.8% to be heard by the Committee at the September 15, 2021 hearing.

22The Committee of Adjustment denied the request for a maximum lot coverage of 15.4% and maximum accessory building lot coverage of 5.8% for the following reasons:

1. The proposed variance would result in over development of the lot and, as a result, is not desirable development for the area.
2. The Ontario Municipal Board (0MB) already approved an increase in overall lot coverage for 10% to 11.5% under file A 13/2014W. A further increase to 15.4% and 5.8% is not minor in nature.

EVIDENCE AND SUBMISSIONS

23The Tribunal heard opinion evidence from Sarah Ivins, Planner for the Township.

24Mr. Yohanna, the Appellant provided opinion evidence on his behalf.

PLANNING EVIDENCE

25The Tribunal must consider whether the variances have sufficient regard to the Provincial interests listed in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2020 (the “PPS”), conform with the Growth Plan for the Greater Golden Horseshoe, 2019 (the “Growth Plan”), and meet each of the four tests in s. 45(1) of the Act.

26The Appellant informed the Tribunal that the Township’s position is not about overbuilding his property. He submitted, “just drive east or west and you’ll see lots with up to 40% lot coverage properties. Unfortunately, the Township is using the planning application process to discriminate against me because I am new to the area.”

27The Appellant further submitted that the “Planning department has held up my balcony permit since July 2020 claiming they needed “legal clarification” whether deck’s require lot coverage when they, as planners, should have a clear understanding and of their own zoning provisions, at minimum.”

28The Tribunal further heard, “they (staff) also wanted to apply to me the policy that any deck higher than 0.6m would require lot coverage, even to my existing porch and decks in the backyard. As you know, planning staff can only recommend to council to make policy changes but not implement it before council approves it.”

29The Appellant further informed the Tribunal that “they (staff) did this to me back in 2014 too; they rejected my minor variance application when I was merely seeking 1.5% increase above the low 10% provided in the zoning provisions but they still rejected my application. Since then, 17% lot coverage has been the standard lot coverage being awarded to their friends and local influential to increase their property values.”

30The Appellant stated “his property is elongated with an approximately 250 ft long driveway which provides a laneway type easy access to the main house as well as the proposed shed. At least 4 vehicles can be parked in front of the accessory building closer to the street yet there will still be unobstructed access for other vehicle(s) to access the driveway to the main house and shed at the back, no problem.”

31The Appellant concluded, “as you know, lot coverage is a percentage calculation of proportional to lot area. Obviously, my neighbour being awarded 17%, based on his lot area, can have more/ larger buildings/structures on his lot than mine. How is the Townships “overbuilding” argument applying to me but not the neighbour? Adding a roof to my existing porch and proposed balcony does not increase building footprint to cause overbuilding.”

ANALYSIS

Provincial Policy Statement, 2020

32Section 3(5) of the Act directs that a decision of a planning authority shall be consistent with the PPS.

33Ms. Ivins submitted the minor variance application has been reviewed with respect to the policies contained in the Provincial Policy Statement (PPS). The PPS designates the subject property as being within the 'Rural Area'. Permitted uses in the 'Rural Area' include the management or use of resources, resource-based recreational uses (including recreational dwellings), limited residential development, home occupations and home industries, cemeteries and other rural land uses.

34The existing single detached dwelling and accessory building with a secondary suite are permitted uses and the proposed additions to the accessory building (balcony and raised deck) are also permitted.

35Section 2.6 of the PPS provides direction for the conservation of significant cultural heritage and archaeological resources. Development and site alteration are not permitted on lands containing archaeological resources or areas of archaeological potential unless archaeological resources have been conserved. Based on the Ministry of Heritage, Sport, Tourism and Culture Industries' Criteria for Evaluating Archaeological Potential, the subject property exhibits high potential for the discovery of archeological resources due to its proximity (within 300m) of the Lake Erie shoreline. Typically an archaeological assessment would be required to support the minor variance application, however the subject property has been subject to recent, extensive and intensive disturbances through previous construction activities and as such an archaeological assessment was not required.

36The proposed variance is consistent with the direction set out in the PPS.

Growth Plan for the Greater Golden Horseshoe 2019

37Section 3(5) of the Act directs that a decision of this Tribunal with respect to any planning matter shall conform and not conflict with the relevant policies of the Growth Plan. The official plans of municipalities and regions in the Greater Golden Horseshoe Growth Plan area must also conform to the Growth Plan.

38Ms. Ivins submitted the minor variance application has been reviewed with respect to the policies contained in the Growth Plan for the Greater Golden Horseshoe (Growth Plan). The Growth Plan designates the subject property as being within a Rural Area. Development outside of a settlement area may be permitted on rural lands for the management or use of resources, resource based recreational uses and other rural land uses that are not appropriate in settlement areas provided a number of criteria are met.

39The existing single detached dwelling and accessory building with a secondary suite are permitted uses and the proposed additions to the accessory building (balcony and raised deck) are also permitted.

40The proposed variance conforms with the Growth Plan.

Regional Official Plan

41Ms. Ivins submitted the subject property is designated as Rural Area in the Regional Official Plan (ROP). The Rural Area permits a variety of non-agricultural development such as non-farm residential uses including recreational uses, and small-scale commercial and institutional development subject to policies of the ROP and the policies of the local official plan.

42The existing single detached dwelling and accessory building with a secondary suite are permitted uses and the proposed additions to the accessory building (balcony and raised deck) are also permitted.

43Similar to the policies of the PPS, the ROP provides direction for the conservation of significant cultural heritage and archaeological resources and requires the completion of an archaeological assessment when development or site alteration is proposed within an area of high archaeological potential. However, as discussed above, the subject property has been subject to recent, extensive and intensive disturbances through previous construction activities and as such an archaeological assessment was not required.

44Ms. Ivins further stated the subject property is also impacted by the Region's Core Natural Heritage System (CNHS) due to the presence of Type 1 (Critical) Fish Habitat within Lake Erie. ROP Policy 7.B.1.15 generally requires the completion of an Environmental Impact Study (EIS) to support any development or site alteration within 30m of Type 1 Fish Habitat. However, since the proposed additions to the accessory building and the proposed shed are located within the existing development footprint and are separated from the Fish Habitat by an existing shorewall, there are no concerns and an EIS was not required.

45The proposed variance conforms with the Regional Official Plan.

Niagara Peninsula Conservation Authority (NPCA) Regulated Lands

46Ms. Ivins submitted the Niagara Peninsula Conservation Authority (NPCA) is responsible for the review of planning applications that have environmental impacts on natural environment hazards and/or natural heritage features such as valleylands and wetlands.

47There are NPCA regulated lands on the subject property due to the hazards associated with the Lake Erie shoreline. However, the location of the existing accessory structure and proposed raised decks and shed are located outside of the NPCA regulated area. As such, the NPCA had no concerns and did not require circulation of the minor variance application.

LEGISLATIVE TESTS

48The Tribunal’s authority to authorize variances is given under s. 45(1) of the Act, which sets out the four tests that must be satisfied by an applicant, when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant, notwithstanding that the COA authorized the variances. The tests require that that the variances:

a. maintain the general intent and purpose of the OP;

b. maintain the general intent and purpose of the ZBL;

c. be desirable for the appropriate development or use of the land, building or structure; and

d. be minor in nature

Maintain the general intent and purpose of the Township’s OP

49Ms. Ivins submitted the primary use of lands within the Lakeshore Residential designation shall be residential. A single detached dwelling and secondary suite are permitted uses within the Lakeshore Residential area along with any structure’s accessory to the dwelling. Official plan policies do not speak specifically to accessory structures and rely on the Zoning By-law to guide placement and scale of such buildings.

50The subject property is also within an Environmental Conservation Area (ECA) and Hazard Lands due to the proximity to Lake Erie. Typically development or site alteration within an ECA requires the completion of an Environmental Impact Study (EIS) to assess impact to the natural heritage features. Development or site alteration within lands designated as Hazard Lands requires review and approval from the Niagara Peninsula Conservation Authority (NPCA).

51The application proposes additions to the existing accessory building and a new accessory building (shed) within the existing developed area and will continue to be separated from the Lake Erie shoreline by an existing shorewall. As such, staff have no concerns and did not require the completion of an EIS.

52The proposed additions are located above the NPCA's regulated lands (erosion hazard limit and flood hazard limit) and as such there are no concerns with respect to the Hazard Lands.

53Ms. Ivins opined that the proposed variance meets the intent and maintains the goals and objectives of the Official Plan.

Maintains the General Purpose and Intent of the Zoning By-law

54Ms. Ivins submitted the proposed additions to the existing accessory building (balcony and raised deck) along with the proposed new accessory building (shed) are permitted as accessory uses to a single detached dwelling within the Residential Lakeshore - RLS zone.

55Development within the Hazard Overlay shall only be permitted through the appropriate permissions from the Niagara Peninsula Conservation Authority (NPCA). The location of the proposed additions to the accessory building and the new accessory building (shed) are located outside of the NPCA regulated area and therefore the NPCA had no concern and does not require a permit for the proposed development.

56The intent of the maximum lot coverage provisions for both accessory buildings and all buildings on a property (total lot coverage), is to ensure that there is sufficient space for servicing (septic), amenity space and to ensure that the development footprint is proportionate to the lot size. It is staff's opinion that the requested variances of 6.4% for accessory building lot coverage and 17% for total lot coverage would lead to an over development of the subject property. The proposed additions to the existing accessory building as well as the new accessory building represents an accessory building lot coverage of 6.4%, however with the existing dwelling it only represents 14.6% total lot coverage. The request for 17% total lot coverage could put a significant constraint on the property with respect to having sufficient space for servicing and parking.

57Ms. Ivins opined that the proposed variance does not meet the intent of the Zoning By-law.

Desirable for the Appropriate Development of the Lands or Use of the Property

58Ms. Ivins opined that the requested variances of 6.4% for accessory building lot coverage and 17% for total lot coverage would lead to an over development of the subject property and not fit the character of the surrounding area.

Minor in Nature

59Ms. Ivins opined that the proposed variance of 6.4% for accessory building lot coverage and 17% for total lot coverage is not minor in nature.

FINDINGS

60As the Appellant had self-represented himself, the Tribunal had requested at the end of the hearing that both Parties submit written evidence to support their claims. The Tribunal further gave leniency to the time span to which both Parties’ written submissions were to be forwarded to the Tribunal for consideration.

61Upon review, the Tribunal proffers the opinion evidence of Ms. Ivins.

62The Tribunal finds the requested variances do not meet the four tests of s. 45(1) of the Act.

ORDER

63THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to By-law 034-2014 are not authorized.

“C. Tucci”

C. TUCCI

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.