CORRECTION NOTICE

OLT CASE NO(S).:

OLT-22-004399

DECISION ISSUE DATE(S):

March 7, 2023

CORRECTION NOTICE ISSUE DATE:

RE: Kanaris v. Midland (Town)

Correction to: The Title of Proceedings, which incorrectly identifies the Appeal as a proceeding commenced under section 34(11) of the Planning Act. It has been corrected to refer instead to s. 45(12) of the Planning Act.

Originally:

Corrected to:

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

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

“Euken Lui”

EUKEN LUI REGISTRAR

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.

ISSUE DATE:

March 07, 2023

CASE NO(S).:

OLT-22-004399

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant

Alexander Kanaris

Subject:

Minor Variance

Description:

To permit an additional accessory building to the subject property

Reference Number:

A.7/2022

Property Address:

8846 County Road 93

Municipality:

Town of Midland

OLT Case No.:

OLT-22-004399

OLT Lead Case No.:

OLT-22-004399

OLT Case Name:

Kanaris v. (Midland) Town

Heard:

January 16, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Alexander Kanaris

Matt Helfand, Patrick Harrington (in absentia)

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This decision is pertaining to the Appeal under s. 45(12) of the Planning Act by Alexander Kanaris (the “Appellant”) against the Town of Midland (the “Town”) Committee of Adjustment (the “COA”) decision to deny the minor variance Application in relation to the Town of Midland Zoning By-law No. 2004-90 for the property municipally known as 8846 County Road 93, Town of Midland (the “Subject Property / SP”).

2The proposed minor variance Application is seeking relief to permit a total lot coverage including accessory structures from 8.8% to 11.2% in order to add an additional permanent accessory building whereas a temporary accessory structure currently exists. This new permanent structure would replace the existing temporary structure to store the Appellant’s boat.

3The Subject Property is zoned as a “Strategic Growth Area II” as apart of “Schedule ‘A’ Growth Areas” of the Town of Midland Official Plan (the “OP”). The SP is also designated as apart of the “Mixed Use Districts” of Schedule ‘B’ of the OP and is marked as a “Commercial Corridor” of Schedule ‘C’ of the OP.

4The Subject Property is zoned as “Rural” (“RU”), is one parcel of land with a frontage of 91.68 metres along County Road 93 and a depth of 54 metres. The total size of the SP is 0.49 ha. The SP has a single detached dwelling with a building area of 78.97 square metres, an accessory building of approximately 417.10 square metres. There are also three sheds on the SP that have an area of:

Shed “A”: 4.46 sq. m.

Shed “B” 4.46 sq. m.

Shed “C” 7.43 sq. m.

5The total area of the existing accessory buildings is approximately 433.45 sq. m. or 8.8%.

6Surrounding the SP are a mix of other rural (“RU”) designated lands. There are commercial designated lands further to the north and south of the SP and industrial designated lands further south of the SP.

HISTORY OF THE APPLICATION

7The application was submitted to the Town of Midland Planning Department (the “staff”) and deemed complete on May 9, 2022. The Application was presented to the COA at the meeting of June 9, 2022. staff recommended at this time to deny the Application. The Applicant requested that the Application be deferred to allow for a resolution that could address the concerns of staff. The COA deferred the Application and after discussions between the staff and the Applicant, the Application was presented back to the COA at the meeting of August 11, 2022. Staff had the same opinion of refusing the Application at the time of this meeting. As such, the COA denied the minor variance Application.

8The COA decision was appealed to the Tribunal on August 31, 2022.

DAY OF THE HEARING

9On the day of the hearing, the Applicant’s Counsel (Mr. Helfand) brought forward one witness in favour of the Application. The Town did not participate in the hearing.

10The Tribunal marked the following items as exhibits to the Hearing: Exhibit #1 Appellant Document Book

Exhibit #2 Witness Statement of Robert Macfarlane Exhibit #3 Appellant Visual Evidence

11Mr. Helfand called Mr. Robert MacFarlane, a Senior Associate with Zelinka Priamo Ltd., a professional land planning firm, as a witness in favour of the Application. Mr. Helfand took the Tribunal through Mr. MacFarlane’s Curriculum Vitae and Acknowledgment of Expert’s Duty. Mr. MacFarlane was affirmed and qualified to give expert opinion evidence in the area of land use planning pertaining to this matter.

12In the introduction of his evidence, Mr. MacFarlane stated that his Witness Statement entailed two different themes of analysis; the first being that the staff at the Town had read Zoning By-law 3.8.6 incorrectly pertaining to lot coverage for accessory uses and that there was not a need for a minor variance application at all. Secondly, Mr. Macfarlane had analyzed the application through the lens of the minor variance process and gave opinion as to why the application met the four tests of a minor variance.

13The Tribunal stated that it wanted to hear both themes of analysis before making a decision on the application.

Planning Evidence - Minor Variance Application Not Needed

14Mr. MacFarlane took the Tribunal through a description of the SP and the surrounding area. The SP is apart of a “Mixed Use District” in the “Commercial Corridor” in the Town of Midland Official Plan. Mr. MacFarlane confirmed that the existing use of the SP is that of a “Rural” designation as per Zoning By-law 2004-90, as amended. This designation was confirmed in the staff report dated August 11, 2022. The permitted uses in this zoning include but are not limited to:

Accessory Building, Detached Dwelling Unit and Home Occupation.

Section 9.1.3 of the ZBL identifies the specific provisions to the “RU” designation as listed in the table below:

9.1.3 Zone Requirements

Single Detached Dwelling Unit

Other Uses

9.1.3.1 Minimum Lot Area

2000 m2

20.0 ha

9.1.3.2 Minimum Lot Frontage

35.0 m

152 m

9.1.3.3 Maximum Lot Coverage

35%

N/A

9.1.3.4 Minimum Yard Setbacks

(a) Front

9.0 m

8.0 m

(b) Rear

8.0 m

8.0 m

(c) Interior Side

6.0 m

8.0 m

(d) Exterior Side

9.0 m

8.0 m

9.1.3.5 Maximum Building Height

11.0m

N/A

15Mr. MacFarlane gave the opinion through his analysis of s. 9.1.3, that the property and the existing dwelling meet the requirements as listed in the table above and conforms to these requirements. As for Accessory Structures, Mr. MacFarlane opined that s. 3.8.6 of the ZBL should apply. Even though the SP is zoned as “RU”, residential uses are permitted. As such, s. 3.8.6 of the ZBL pertaining to residential uses states:

Lot Coverage for an Accessory building shall not exceed 8%, unless otherwise specifically permitted in this By-law. Lot Coverage for accessory buildings in all Residential Zones shall not exceed 12%, but in no case shall the total lot coverage of the dwelling and all accessory structures exceed the Maximum Lot Coverage of the respective Residential Zone.

16Mr. MacFarlane opined that the overall lot coverage including the new permanent accessory structure is below the 8% limit and the total lot coverage including the new permanent structure is 11.2%. This is below the 12% maximum permitted. Mr. Macfarlane stated that since this is below the threshold requirements of the ZBL, a minor variance is not required and the application should be dismissed.

17If the Tribunal were to find that s. 3.8.6 does not apply since the property is zoned “Rural”, Mr. MacFarlane opined that under the zone requirements of s. 9.1.3, the total lot coverage of the existing main dwelling and the accessory structures are well below the cumulative total of the 35% allowable coverage. As such, the Application is not needed to construct the new Accessory Structure.

Planning Evidence – Minor Variance Application

18An appeal pursuant to s.45(12) of the Planning Act is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met. These tests are that the variances:

(a) maintains the general intent and purpose of the Official Plan;

(b) maintains the general intent and purpose of the Zoning By-law;

(c) is minor in nature; and

(d) is desirable for the appropriate development or use of the land, building or structure.

19Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (“PPS”). The Tribunal must also have regard to matters of Provincial interest in s. 2 of the Act, as well as regard for the decision of the Municipality and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

20Mr. MacFarlane opined that the minor variance before the Tribunal is a matter of local interest. As such, the Application is consistent with the PPS and conforms with the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2020) (the “GP”).

Maintains the General Intent and Purpose of the Town of Midland Official Plan (the “OP”)

21Mr. MacFarlane opined that the Application maintains the general intent and purpose of the OP as the Application pertains to Accessory Buildings. The OP does not specifically regulate Accessory Structures. This regulation takes places within the ZBL. The staff report confirms Mr. MacFarlane’s opinion that the Application does conform to the OP.

Maintains the General Intent and Purpose of the Town of Midland ZBL

22With regard to the intent and purpose of the ZBL, Mr. MacFarlane gave opinion that the staff report is in error of its interpretation of ZBL 3.8.6. The staff report states that the maximum permitted lot coverage for accessory buildings and structures is 8%. The actual plain reading of the ZBL states that:

“Lot Coverage for an Accessory building shall not exceed 8%, unless otherwise specifically permitted in this By-law. Lot Coverage for accessory buildings in all Residential Zones shall not exceed 12%, but in no case shall the total lot coverage of the dwelling and all accessory structures exceed the Maximum Lot Coverage of the respective Residential Zone.”

23In Mr. MacFarlane’s opinion, the full reading of this section of the ZBL demonstrates that the proposed Accessory building is well below the 8% as an individual building and that the total lot coverage of all the Accessory buildings is a total of 11.2%, below the 12% maximum permitted.

24Section 9.1.3.3 of the ZBL states that the maximum lot coverage for a single detached dwelling unit is 35%. All other uses do not state a maximum lot coverage. Mr. MacFarlane gave opinion that If the Tribunal were to use just the detached dwelling lot coverage, the total is well below the 35% maximum.

25In his opinion, the proposal maintains the general intent and purpose of the ZBL. Section 3.8.6 of the ZBL allows for a maximum lot coverage of 12% for Accessory Buildings, the proposal will have a total coverage of 11.2%.

Minor in Nature

26In Mr. MacFarlane’s opinion, the requested variance is minor in nature. The Application will not impact the character of the property or the area. The accessory structure would replace a now temporary structure which has been in existence for approximately 10 years. The new permanent structure would have less of a visual impact than the current structure. The overall lot coverage of the main dwelling and the accessory structures would be well below the 35% maximum allowed under s. 9.1.2 of the ZBL. The Applicant is willing to plant landscaping at the front of the property to minimize the perceived visual impacts.

Desirable and Appropriate Development and Use of the Land, Building or Structure

27Mr. MacFarlane gave opinion that the proposed permanent structure is simply replacing an existing temporary structure that has been in existence for approximately 10 years. It would serve the same purpose as the existing temporary structure. The proposed structure would have an appearance to resemble the existing detached dwelling and will represent more or the rural character of the SP and the area. The proposed structure would be a visual improvement in comparison to the temporary structure.

Conclusionary Opinion

28In Mr. MacFarlane’s opinion, the Application as presented, meets the fours tests of a minor variance application. Furthermore, it must be noted that the Applicant is wanting to construct a permanent structure that is similar in size to store his boat. The new structure would be aesthetically more pleasing to the eye and fit in with the current character of the property. As for the size of the new structure, there is not anywhere in the ZBL that states that an accessory structure should be smaller than the primary residence or dwelling. Just because the storage of the boat needs the requested size of this structure does not mean that the structure is still an accessory use to the primary use of the dwelling.

29It was Mr. MacFarlane’s recommendation that if the Tribunal were to approve the Application, it should impose the conditions as put forth by the Applicant at the COA meeting. The effect of this plant screening would be to reduce the visual site lines to the new structure.

ANALYSIS AND FINDINGS

30In arriving at its Decision, the Tribunal has reviewed the material evidence provided, considered the evidence and opinions of the witnesses, has given regard to the materials presented to the COA and the decision thereof.

Minor Variance Application Not Needed

31With regard to the opinion of Mr. MacFarlane concerning the requirement of a Minor Variance Application at all, the Tribunal takes caution in this interpretation of the ZBL by Mr. MacFarlane. The Tribunal agrees that the “RU” zoning is correct and that the zoning requirement falls under s. 9.1.3. A plain reading of this section of the ZBL clearly states that the maximum lot coverage for a “Single Detached Dwelling Unit” can be no more than 35%. The ZBL also clearly states that a detached dwelling unit is a permitted use along with the uses of an accessory building and home occupation. Other “uses” such as an accessory building do not have a maximum lot coverage as seen in the table under “Other Uses” in s. 9.1.3, it is simply “N/A” or “Not Applicable”, however, the new proposed permanent structure would still have to conform with the lot setbacks as stated in s. 9.1.3.4. If the Tribunal were to only use s. 9.1.3 in its analysis for this Application, the Tribunal finds that the new structure would need a variance from the rear yard setback as the new structure is proposed to be 3.0m from the rear lot line whereas 8.0m is required.

32The issue now becomes, does the “RU” designation fall under any “Residential” uses under the ZBL. In a plain reading of the ZBL, a single detached dwelling assumes to be a residential use under the “RU” designation, however, it does not state that accessory structures should be assumed to be apart of the 35% maximum lot coverage as interpreted by Mr. MacFarlane. Without corroborating or refuted evidence by the Town, the Tribunal is left to analyze its own interpretation.

33As such, the Tribunal finds that the interpretation of the ZBL under s. 9.1.3 is that a single detached dwelling unit can have a maximum lot coverage of 35%. Accessory Buildings cannot be included in this 35% as the definition of an Accessory Building in the ZBL states:

Accessory Building: “Shall mean a separate building or structure, normally incidental, subordinate, or exclusively devoted to and located on the same lot as the principal use, building or structure but not including a building or structure used for human habitation except where specifically permitted

34The Tribunal has determined that the Appellant’s request that a minor variance application is not needed in this matter is denied. The Tribunal finds that Application does need to pass the four tests of a minor variance.

Four Tests of a Minor Variance

35In analyzing the evidence of the tests of a minor variance, the Tribunal must first interpret the zoning of the SP. The Tribunal is aware that the zoning is “RU”, however there is the existence of a Single Detached Dwelling Unit. The Applicant claims to use the SP as a cottage or personal dwelling, and as such, the Tribunal will interpret that s. 3.8.6 of the ZBL concerning Lot Coverage for an Accessory Building applies in this matter as this was the section of the By-law that was used to request the forementioned relief. The Tribunal finds that this section of the ZBL is intended to be used by the Town to limit the lot coverage of accessory buildings to a total of 8% for any one (emphasis added) accessory building or a total of 12% for all accessory buildings in residential zones. A plain reading of this section of the ZBL states:

“Lot Coverage for an Accessory building (emphasis added) shall not exceed 8%, unless otherwise specifically permitted in this By-law. Lot Coverage for accessory buildings in all Residential Zones shall not exceed 12%, but in no case shall the total lot coverage of the dwelling and all accessory structures exceed the Maximum Lot Coverage of the respective Residential Zone.”

36With further analysis of the full section 3.8 of the By-law, including s. 3.8.6, the Tribunal finds that the first sentence is s. 3.8.6 applies most directly to this application. The new proposed permanent structure is less than the 8% maximum allowable for any one accessory building. However, the intent of the ZBL overall is to ensure that Accessory Buildings remain as an accessory use by limiting the amount of total lot coverage.

37The Tribunal finds that the proposed permanent structure will have approximately the same size and scale as the existing temporary structure. The intent of the new permanent structure is to house the same materials (a boat) as the temporary structure currently houses. The new structure will be more aesthetically pleasing than the current temporary structure.

38It was raised by staff in the planning report of August 11, 2022, that the current use of the SP is not of a “RU” designation, but that of a commercial purpose. There was not any evidence brought forward that demonstrated a contravening use by the Appellant. The Tribunal notes that an ‘Apprehension of Use’ is not an applicable standard that can be used in a planning matter.

39The Tribunal finds that the Application is consistent with the PPS and the Growth Plan. The Tribunal finds that the Application meets the general intent and purpose of the Town of Midland Official Plan and meets the general intent and purpose of the Town of Midland Zoning By-law. The Tribunal finds that the Application is considered to be a desirable use of the lands and is minor in nature.

ORDER

40THE TRIBUNAL ORDERS that the appeal is allowed in part and the following variance to the Town of Midland By-law 2004-90, as amended, to permit a maximum lot coverage for accessory structures of 11.2% whereas 8% is permitted, is authorized subject to the following condition:

That the Applicant plant screening vegetation along the eastern property line, as described in the submitted site plan to the satisfaction of the municipality, prior to the issuance of a building permit.

“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.