Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 20, 2023

CASE NO(S).: OLT-22-003950

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

Applicant/Appellant: Joseph Moore

Subject: Minor Variance

Description: Four variances in order to expand the existing detached dwelling and construct an accessory building.

Reference Number: A33/22 FE

Property Address: 214 Windmill Point Road S

Municipality/UT: Fort Erie/Niagara

OLT Case No: OLT-22-003950

OLT Lead Case No: OLT-22-003950

OLT Case Name: Moore v. Fort Erie (Town)

Heard: December 14, 2022 by video hearing

APPEARANCES:

Parties: Counsel

Joseph Moore: Meredith Baker

Town of Fort Erie: Jennifer Stirton

Windmill Point Holdings Corporation: Thomas Richardson, Rachelle Rose (articling student)

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision concerns the hearing of the appeal by Joseph Moore (the “Appellant”) pursuant to s. 45(12) of the Planning Act against the Town of Fort Erie (the “Town”) Committee of Adjustment’s (the “COA”) decision to deny the minor variance application requesting relief from the Town of Fort Erie Comprehensive Zoning By-law No. 129-90, as amended.

2The Subject Property (the “SP”) is municipally known as 214 Windmill Point Road South, Town of Fort Erie.

3The original minor variance application was requesting the following variances be approved by COA:

(1) A reduction in the rear yard setback to 9.2 metres, whereas 11.2 is required

(2) A reduction in the 1-in-100-year flood minimum elevation setback to 25.2 metres whereas 30 metres is required.

(3) To increase the maximum permitted building height and number of storeys for a proposed accessory structure to 8.5 metres and two storeys whereas 6.0 metres and 1 storey is permitted.

(4) A revision to the term “attached”. The Zoning By-law states that the term attached means “that the roof, wall and foundation or structure is shared on common with another building or structure. Where the roof of one part of the structure may be shared in common with the wall of another” to the following “that the roof and foundation of a building or structure is shared on common with another building or structure”. The word “wall” would be taken out of this description for this property.

4The SP is located is designated Rural (RU) in part, and Environmental Protection (H) in part of the Town’s Official Comprehensive Zoning By-law No. 129-90, as amended. The lot is rectangular in shape with an approximate size of 4.668 hectares (“ha”). The lot frontage of approximately 130.08 metres (“m”) is located on the east side of Windmill Point Road South. The property is surrounded by single detached dwellings to the east and south. To the north of the SP are rural lands. Located on the west side of Windmill Point Road South are Provincially Significant Wetlands. Located on the SP is one single detached dwelling and two accessory structures.

5The Appellant plans for the construction of a new dwelling include twenty (20) bedrooms, twelve (12) full bathrooms, as well as a kitchen in the main building and one kitchen in the west wing of the dwelling. It must be noted that the Zoning By-law does not regulate the number of bedrooms, kitchens or bathrooms that can be contained in a dwelling.

6The original minor variance application was filed and deemed complete with the Town on March 18, 2022, and the original application was presented before the COA at the meeting of May 12, 2022.

7In the Staff Report that was presented before the COA, Planning Staff recommended that the variances for the rear yard setback, the flood elevation and permitted height of an accessory building be approved. Planning Staff did not recommend that the variance asking for a new definition of “attached” be approved.

8At the COA meeting, there were many public comments by neighbouring residents, including the Windmill Point Holdings Corporation. The common themes of concern were that the minor variances being requested will not result in one single dwelling, but three dwelling units attached with a walkway, which is not a permitted use under the ZBL. The concern is the Appellant will be using the proposed as a private resort or a motel/hotel in the future, which is not a permitted use under the Zoning By-law.

9After consideration of the Staff Report and the comments received during the COA meeting, the COA denied all four of the minor variances as the variances did not meet the four tests of a minor variance as per s. 45(1) of the Planning Act.

10An appeal package from the Applicant was received by the Ontario Land Tribunal on June 1, 2022.

DAY OF HEARING

11At the beginning of the hearing, a request for Party status was made by Mr. Richardson on behalf of Windmill Point Holdings Corporation (the “Association”). The Tribunal found that Mr. Richardson had sent the party request to the Tribunal within the statutory timelines and that the Association had been apart of the public meeting process before the COA. The Appellant and the Town of Fort Erie did not object to the presence of the Association as a Party to this hearing.

12The Tribunal found that Windmill Points Holding Corporation met the criteria for Party Status as the Association was going to provide their own expert witness as to their recommendations for the variances being sought and the conditions thereof. The Tribunal ruled that Windmill Point Holdings Corporation met all the needed criteria and the Tribunal ruled that the Association be approved for party status at the Hearing.

13The Tribunal heard from three witnesses. The first witness called by the Appellant was Anamika Dilwaria, the Town Planner who presented the Staff Report to the COA for the meeting of May 12, 2022. Ms. Dilwaria was affirmed and qualified without refute to give expert opinion evidence in the area of land use planning. The second witness called by the Appellant was Steven Rivers, who was involved in the minor variance application process and who represented the Applicant at the COA meeting on May 12, 2022. Mr. Rivers was affirmed and qualified without refute to give expert opinion evidence in the area of land use planning. The third witness was Dan Currie who represented the Association. He was affirmed and qualified without refute to give expert opinion evidence in the area of land use planning

Legislative Framework for Minor Variance Appeals

14The Tribunal was made aware before the commencement of the hearing that a settlement had been reached between the Appellant and the Town. The Association was not in agreement with the settlement – specifically the conditions that had been agreed upon by the Appellant and the Town. Since all the recognized parties had not come to an agreement on the settlement, the hearing on this day would now be commencing pursuant to s. 45 of the Planning Act, meaning that this hearing is a hearing de novo and the onus would be on the Applicant to establish that the four tests have been met.

15Section 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 or the decision of the COA and the information it considered in the course of making its decision, in accordance with s. 2.1(1) of the Act.

16The Tribunal must evaluate the minor variances in the context of the following four tests under s. 45(1) of the Act:

a. Do they maintain the general intent and purpose of the Official Plan (“OP”);

b. Do they maintain the general intent and purpose of the Zoning By-law (“ZBL”);

c. Are they minor:

d. Are they desirable for the appropriate development or use of the land.

17At the commencement of the evidence, the Tribunal was made aware by the Appellant that the application before the Tribunal had been amended. The new application had three variances before it:

(1) A reduction in the rear yard setback to 9.2 metres, whereas 11.2 is required

(2) A reduction in the 1-in-100-year flood minimum elevation setback to 25.2 metres whereas 30 metres is required.

(3) To increase the maximum permitted building height and number of storeys for a proposed accessory structure to 8.5 metres and two storeys whereas 6.0 metres and 1 storey is permitted.

18The original fourth variance pertaining to the revision of the term “attached” was not needed due to changes made to the Applicant’s drawings.

19The Tribunal found that the revisions to the application were minor in nature. As such, the Tribunal ruled that the revised application did not need any further notice as per s. 45(18.1.1) of the Planning Act.

EVIDENCE

Provincial Policy Statement (2020) (the “PPS”) and Greater Golden Horseshoe Growth Plan and the Region of Niagara Official Plan

20All three of the expert witnesses were in agreement that the revised application’s minor variances were a matter of provincial interest. The experts agreed that the Application was consistent with the PPS, conforms with both the “A Place to Grow: Growth Plan for the Greater Golden Horseshoe” (2020) and the Region of Niagara Official Plan.

Four Tests of a Minor Variance

21Mr. Rivers took the Tribunal through each of the variances in detail to demonstrate that each of the variances meet the four tests of a minor variance:

Variance 1 Reduction in Size Yard Setback

Maintain the General Intent and Purpose of the OP

22In Mr. Rivers’ opinion, the SP is designated Rural in the Town of Fort Erie OP, which permits single detached dwellings. The proposed development is compatible with the size of the property. The proposal is similar in size and scale to other adjected properties located in the Lake Erie shoreline area. The reduced setback is to accommodate the addition of covered walkways. In his opinion, sufficient separation is still available with the approval of this minor variance to meet the intent and purpose of the Town of Fort Erie OP.

Maintain the General Intent and Purpose of the ZBL

23Mr. Rivers opined that the ZBL encroachment limits is to ensure that there is adequate spacing between dwellings. The proposed variance still provides a more than adequate space between neighbouring dwellings. Since the variance request is for a covered walkway that is not enclosed, the walkway will not cause any adverse affects on neighbouring properties. The variance requested meets the general intent and purpose of the Town of Fort Erie ZBL.

Desirable for the Appropriate Use and Development of the Lands

24Mr. Rivers gave opinion that the proposed variance is an additional walkway to the existing single detached dwelling. The minor variance request ss an appropriate use since the variance in question is not located on the hazard area and complies with the ZBL. The variance does not adversely impact any compatibility with surrounding properties. The variance, in his opinion, is an appropriate use and development of the lands.

Minor In Nature

25In Mr. Rivers opinion, the variance is minor in nature as the walkway will not impact adversely the privacy or view from neighbouring properties. The overall size of the property mitigates any impact to the neighbouring properties.

26Ms. Dilwaria and Mr. Currie were both in agreement that the requested variance meets the four test and should be approved.

Variance 2 Reduction in the 1-in-100 Year Flood Elevation

Maintain the General Intent and Purpose of the OP

27Mr. Rivers stated that this variance request of 4.8 m is to accommodate the proposed development including the covered walkway. The minor increase requested will not provide any impacts to the fish habitat and there will not be any risk to human health and safety to the dwelling in question. The dwelling and covered walkway are located outside of the natural hazard area. As such, Mr. Rivers’ opined that the variance meets the general intent and purpose of the Town of Fort Erie OP.

Maintain the General Intent and Purpose of the ZBL

28In Mr. Rivers’ opinion, the variance does meet the general intent and purpose of the Zoning By-law. The purpose of the restriction is to protect the Lake Erie fish habitat. There have been similar structures built close to Lake Erie that have not had any impact on the fish habitat. The variance requested is outside of the natural hazard area and does not provide any risk to the natural habitat.

Desirable for the Appropriate Use and Development of the Lands

29Mr. Rivers opined that the requested variance is appropriate for the lands as the potential impact to the fish habitat is insignificant. The risk of the proposed structure and adjected structures is minimal at best. The location of the requested variance is not within the hazard area and not a risk to the hazard area.

Minor in Nature

30Mr. Rivers gave opinion that since the variance is outside of the hazard area that is associated with the 1-in-100-year flood elevation, the potential flooding and erosion is minimal as best. The requested variance is minor in nature.

31Mr. Currie and Ms. Dilwaria were both in agreement with Mr. Rivers’ opinion. The variance requested should be approved as it meets the four tests.

Variance 3 Increase the Maximum Permitted Building Height and Number of Storeys for a Proposed Accessory Structure

Maintain the General Intent and Purpose of the OP

32Mr. Rivers stated that the zoning of the SP does allow for one accessory structure. The accessory building’s design will be aesthetically pleasing and functional for the purposes of storing equipment and large vehicles including a motorhome. The requested variance is to allow enough room for proper storage and maintenance of the motorhome. The accessory building is located away from the main building and the overall height is les than the main dwelling. In Mr. Rivers’ opinion, the accessory structure meets the general intent and purpose of the OP.

Maintain the General Intent and Purpose of the ZBL

33Mr. Rivers opined that the maximum height provision is to prevent buildings that would have a significant mass which could lead to negative aesthetic impacts to the neighbourhood. The SP is large enough to accommodate such a structure and will be set back far enough from any of the lot lines and the dwelling itself. These precautions that have been taken as to the size and placement of the accessory building allow this variance to maintain the general intent and purpose of the ZBL.

Desirable for the Appropriate Use and Development of the Lands

34In Mr. Rivers’ opinion, the requested variance is an appropriate use of the land since the proposed structure does not adversely impact the surrounding properties or the neighbourhood. The location is well within the other setback requirements and is located in an area of the property that separates the building from the main dwelling.

Minor in Nature

35Mr. Rivers gave opinion that the requested variance is minor in nature as the proposed height of the accessory structure will be less that main dwelling and the structure location will not have any impact to adjacent properties.

36Ms. Dilwaria and Mr. Currrie were both in agreement with Mr. Rivers that this variance met the four tests and should be approved by the Tribunal.

Conditions of Approval of the Minor Variances

37In the agreement made between the Town and the Appellant before the hearing, there was one agreed upon condition. This condition was:

The Applicant shall provide a legal undertaking affirming that the accessory structure will not be used for human habitation.

38The Association was in agreement with this condition. However, the Association felt that a second condition should be imposed on the agreement. The request of the second condition by the Association was:

The Applicant shall provide a restrictive covenant in an agreement registered on title that requires residential use of the main structure shall only be one single detached dwelling and one accessory apartment dwelling with no more than two food preparation areas.

39It is this second requested condition by the Association that is the area of dispute between the parties.

40Mr. Richardson went into detail as to the reasonings behind the second condition being requested. He stated that through the COA process and even up to the agreement between the Town and the Appellant, the proposed drawings have changed. The connecting walkway is now attached to the walls, this is to only make the dwelling look like one building, instead of the three separate units. There is a great fear and trepidation that this proposal will change once again, and the property will not be used as a private dwelling. There is potential for this to be used as a “private resort” or even a motel or hotel in the future. The Association is afraid that if approved without their requested condition, there is a potential for abuse by the Appellant to use the property for uses other than what is allowed in the Zoning By-law. This requested condition would “guarantee” that the property could only be used as a single dwelling with no more than two kitchens. It is the right of the Tribunal to impose such conditions if the Tribunal deems necessary under s. 45 (9) of the Planning Act.

41In his questioning of Ms. Dilwaria concerning the settlement, Ms. Dilwaria clarified that under s. 5.103 of the ZBL, there is not any limitation as to the number of food preparation areas a dwelling may have. The ZBL also does not limit the number of bedrooms that a single dwelling may have. Her opinion was that the single dwelling, as purposed, can have one accessory unit – which in this case – is located in the west wing of the dwelling. This proposal would still comply under s. 6.4.3 of the ZBL. She is still under the recommendation that the settlement meets the statutory requirements under s. 45 of the Planning Act as the variances meet all the tests. The condition was agreed upon by both the Appellant and the Town and the only condition needed for the settlement.

42Mr. Richardson questioned Ms. Dilwaria as to the agreed upon condition. If the ZBL under s. 6.1(a) already stipulates that an accessory building cannot be used for habitation, why the need for the attached condition. Ms. Dilwaria stated that the condition was a recommendation as apart of the original report to the COA. The condition is a redundancy but was the condition that the Town and the Appellant agreed upon as both the COA meeting and the settlement brought forth to the Tribunal.

43Mr. Richardson then asked Ms. Dilwaria about the condition that the Association was asking to be approved by the Tribunal at this hearing. She stated that she would not be against the condition if the Tribunal thought it necessary to approve the application before it. However, she stands by her report and the settlement as presented to the Tribunal.

44In Mr. Rivers’ testimony concerning the extra condition, he stated that the covenant being requested is based on speculation as to what the Association “thinks” may happen in the future with the SP. There is nowhere in the ZBL that restricts the number of bedrooms or food preparation areas that a dwelling may have. To limit the number of food preparation areas and to limit the use of the property with this condition is a “back door” method of adding an extra provision that was not agreed upon by the parties.

45Mr. Rivers opined that the RU zoning allows for the use that the application is stipulating. If for some reason the owner changes the use of the property that is outside of the permitted use, the Association has tools at its disposal through the Town’s By-law office that can impose fines up to $25,000.00 for the first offence and up to $10,000.00 per day after the first conviction as per s. 2.2(a)(i) and (ii) of the ZBL. In his opinion, this is a huge potential penalty for any homeowner. He feels that the potential fines and authority of the Town are enough to prevent any homeowner from stepping outside of the ZBL permitted uses. If this second condition was approved, the homeowner would have to go to court to have this condition removed in the future if the property owner wanted to change the property use. Once this was removed, the property owner would still have to apply for a Zoning By-law Amendment to change the usage. This makes having this condition on title not necessary due to the Town’s Zoning By-law Amendment process.

46In Mr. Currie’s testimony on the requested added condition, he opined that the requested condition is reasonable based on the size of the structure and the number of bedrooms and washrooms. This would ensure that the main dwelling is used as a single detached dwelling. Even though the ZBL does not limit the number of bedrooms, bathrooms or food preparation areas, it was his opinion that the request being made by the Association was reasonable and would help reinforce the property’s current use under the ZBL.

ANALYSIS AND FINDINGS

47In arriving at its Decision, the Tribunal 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.

48With regards to the revised application that was presented to the Tribunal, the Tribunal finds that the revision to the application reduced the amount of variances being sought from the original application. As such, the Tribunal found that the amended application did not require any further notice pursuant to s. 45 (18.1.1) of the Planning Act.

49As for the requested minor variances, all the expert witnesses agreed that the application was consistent with the PPS, conforms with the “A Place to Grow: Growth Plan for the Greater Golden Horseshoe” (2020) and the Region of Niagara Official Plan. The Tribunal agrees with the witnesses and finds that the application is consistent with the PPS, conforms with the Growth Plan for the Greater Golden Horseshoe and conforms with the Region of Niagara Official Plan.

50With regards to the tests of a minor variance pursuant to s. 45 of the Planning Act, all the experts agreed that the variances, as presented, meet the statutory tests and should be approved. The Tribunal agrees and finds that the totality of the evidence proves that the minor variances have met the statutory requirements.

51The experts agreed that the condition that was agreed upon by the Town and the Appellant was sound and should remain if the Tribunal were to approve the minor variances. As such, the Tribunal finds that the condition that was agreed upon by the Town and the Appellant is appropriate and should remain as a condition to the approval of the minor variances.

52The area of dispute between the parties is the second condition as proposed by the Association. The Appellant was not in agreement that this condition should be added. The Town’s counsel did not take a position on the added condition.

53Through its analysis of the proposed condition, the Tribunal took consideration and gave weight to the opinions of the witnesses. The Association’s position that this condition will “guarantee” that the use of the property as stipulated under the ZBL. This condition would guarantee this single dwelling use no matter who was the owner of the property unless said owner were to go to court to have this remove from the title of the property.

54It was the Appellant’s position that the ZBL is the instrument that is used by municipalities to stipulate the use of a property, no matter who the owner of the property is. If restrictions of use were to be put on title without consent of the property owner, then there would not be a need to have a ZBL at all.

55The Appellant stated that the ZBL does not limit the number of bedrooms, bathrooms or food preparations areas for a dwelling with the “RU” designation. Conditions such as this are not in the spirit or intent of the ZBL and should not be imposed.

56After consideration of the positions of the parties to the Association’s proposed condition, the Tribunal accepts the evidence of the Appellant. The Association has not proven to the Tribunal that the Appellant will use the property for anything other than the designated use. The Tribunal does not recognize or accept ‘apprehension of impact or use’ as a valid consideration in deciding a planning application. Without any contravening evidence that can be demonstrated to the Tribunal supporting these apprehensions, the Tribunal finds that these apprehensions warrant less weight to the Association’s argument of potential property use. The ZBL provides significant penalties that can be imposed by the Town if the use of the property is found to be outside the ZBL. The ZBL does not provide limits to bedrooms, bathrooms or food preparation areas. If the Tribunal were to enforce this condition as requested, the Tribunal finds this would be outside the intent of the ZBL. The Tribunal finds that the proposed condition by the Association would put excessive limits to the elements within the dwelling itself. As such, the Tribunals finds the Association’s proposed condition cannot be attached to the approval of the minor variance application.

ORDER

57THE TRIBUNAL having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Planning Act that no further notice is required;

58THE TRIBUNAL ORDERS that the appeal is allowed and the variances to the Town of Fort Erie Zoning By-law No. 129-90, as amended, are authorized subject to the following condition:

• That the Applicant shall provide a legal undertaking affirming that the accessory structure will not be used for human habitation.

“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.