Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 11, 2023
CASE NO(S).: OLT-22-004692
PROCEEDING COMMENCED UNDER section 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Vince and Gail Coulas
Subject: Minor Variance
Description: To permit an existing park model trailer as residential dwelling and legalize an existing shed
Reference Number: A-42-22
Property Address: 8040 Frederick House Lake Road
Municipality/UT: Timmins/Cochrane
OLT Case No.: OLT-22-004692
OLT Lead Case No.: OLT-22-004692
OLT Case name: Coulas v. Timmins (City)
Heard: March 2, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Vince Coulas and Gail Coulas
Kimberly Kenney
("Applicant/Appellant")
City of Timmins ("City")
David Neligan
DECISION DELIVERED BY JENNIFER GOLD AND P. TOMILIN ON MARCH 2, 2023 AND ORDER OF THE TRIBUNAL
BACKGROUND
1The matter before the Tribunal is an appeal filed by Vince Coulas and Gail Coulas (the "Appellants") against the decision of the City of Timmins (the "City") Committee of Adjustment (the "Committee") dated October 17, 2022, in relation to the refusal of an application for two minor variances to the zoning provisions established by Zoning By-law No. 2011-7100, as amended (the "ZBL") concerning 8040 Frederick House Lake Road (the "Subject Property"). The Subject Property is located within the Resource Development Area designation of the City's Official Plan and located within the Residential Estate Type 1 ("RD-RE1") zone of the ZBL.
2In 2020, the City received complaints from residents about the use of trailers as dwellings on waterfront properties. The City made efforts to limit the use of trailers as seasonal dwellings on waterfront properties. It issued many zoning by-law infraction notices. The Appellants received such a notice in relation to a park model trailer and a travel trailer located at the Subject Property.
3The Appellants submitted an application to the Committee seeking a variance to the uses permitted in the Residential Estate Type 1 (RD-RE1) zone to allow an existing park model trailer to be designated as the primary residential dwelling unit on the lot and permitting the existing "shed" as an accessory structure to the primary residential dwelling unit. After the Committee refused the application, the Appellants appealed to this Tribunal on or about November 7, 2022.
4A hearing was held and the City called Mr. Stefan Szczerbak as an expert planning witness. He was properly qualified as an expert witness and the Tribunal found his evidence to be credible and reliable. The Appellants did not call any expert witnesses. Mr. Vince Coulas testified regarding the nature and use of the main structure, shed and a travel trailer. Regarding the travel trailer located at the Subject Property, the Appellants advised at the hearing before the Tribunal that they are not seeking a variance regarding the use of the travel trailer located at the Property and that a second variance is sought only in relation to the use of a shed as an accessory structure.
ISSUES
5The issues raised by the appeal are as follows:
Is the main structure at the Subject Property included in the permitted uses within the RD-RE1 Zone of the ZBL? The Appellants submitted at the hearing that the main structure could be categorized as a single detached dwelling and permitted by the ZBL.
If the main structure is not included in the permitted uses within the RD-RE1 Zone of the ZBL, should a minor variance be granted taking into account the four tests set out in s.45(1) of the Planning Act.
6The permitted use of the shed as an accessory structure depends on the characterization and/or variance with respect to the main structure. Permitted uses within the RD-RE1 Zone include accessory uses, buildings and structures.
IS THE MAIN STRUCTURE A PERMITTED USE?
7The Appellants purchased the property municipally described as 8040 Frederick House Lake Road in Timmins, Ontario in 2017. In the Agreement of Purchase and Sale, the structure at the property was listed as a "Park Model Camper" and as chattel. In the Bill of Sale, it was referred to as a "Mobile Home". The Municipal Property Assessment Corporation referred to the property as a "seasonal/recreational dwelling". The Appellants argued that the structure was a single use dwelling permitted by the ZBL or in the alternative, should be permitted as it meets the test for a minor variance.
8The City classified the structure as a park model trailer which is not a permitted use according to the ZBL.
9During his testimony, Mr. Coulas informed the Tribunal that the structure was used seasonally and that the Appellants spend an average of six to seven months at the main structure of the Subject Property. Its use has not changed since the Subject Property was purchased. The main structure is mounted on wheels, although one wheel is missing. He recently installed a leaching pit for grey water. There is a privy pit for wastewater. A well was installed in 2022. Prior to the installation of the well, he brought in water. He plans to build a garage and a house in three to five years at the Subject Property. He informed the Tribunal that he did not apply for a minor variance for the travel trailer and only sought minor variances for the "dwelling" and shed.
10The City's expert witness, Mr. Szczerbak, testified that the main structure was a park model trailer and not a single detached dwelling. Section 3 of the Zoning By-law defines a "Park Model Trailer" as "a manufactured building designed and constructed in conformance with CAN/CSA-Z241 Series M "Park Model Trailer, as set out in the Building Code, and is used or intended to be used for seasonal accommodation. It is manufactured in a factory and transported to a site. There are specific standards regarding its use and how it is serviced. Seasonal uses tend not to be constructed for winter. In contrast, a single detached dwelling is permanent in nature. There are different checks and balances for permanent uses such as building codes, inspections and sanitary requirements. Neighbourhoods with permanent structures require year-round servicing, accessibility and maintenance. The Appellants did not present any expert evidence to contradict the testimony of Mr. Szczerbak. Mr. Szczerbak's testimony during cross-examination was reliable and consistent with his witness statement and testimony during his examination-in-chief.
11The Tribunal finds that the main structure at the Subject Property is a park model trailer. It has wheels and can be transported. It is used by the Appellants seasonally. It cannot be characterized as a single detached dwelling. The ZBL clearly distinguishes between a single detached dwelling and a dwelling that is a park model trailer. Zone RD-RE1 of the ZBL permits the use of single detached dwellings and mobile homes (double wide), among other uses. The park model home or a mobile home (single wide) are not permitted uses.
SHOULD A MINOR VARIANCE BE GRANTED TAKING INTO ACCOUNT THE FOUR TESTS SET OUT IN S.45(1) OF THE PLANNING ACT?
12An appeal to this Tribunal pursuant to s. 45 of the Planning Act is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is on the Applicant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Planning Act and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 ("PPS") under s. 3(5) and conform with any provincial plans that are in effect. In this case, the minor variance should conform with the Growth Plan for Northern Ontario, 2011.
13The opinion of the City's planning expert, Mr. Szczerbak, is that the minor variance sought is consistent with the PPS 2020 and it conforms with the Growth Plan for Northern Ontario, 2011. This opinion was shared by City staff and included in a report to the Committee prior to it rendering its decision.
14Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:
i. maintain the general intent and purpose of the Official Plan;
ii. maintain the general intent and purpose of the ZBL;
iii. are desirable for the appropriate development or use of the land, building or structure; and,
iv. are minor in nature.
PLANNING EVIDENCE
Does the variance maintain the general intent and purpose of the City of Timmins Official Plan (the "Official Plan")?
15Mr. Szczerbak highlighted several sections of the Official Plan which sets the land use planning framework by the City. In accordance with Schedule "A" of the Official Plan, the Subject Property is located within the "Resource Development Area" land use designation. Section 3.4 of the Official Plan sets out Resource Development Area policies that speak to permitting seasonal and permanent residential uses in the waterfront areas. Section 3.4.3 permits seasonal and permanent residential uses only where it has been demonstrated there is capacity of the waterbody and requires an impact report demonstrating the proposed development will not result in a decline in the water quantity and quality. Section 3.4.4 requires the Zoning By-law to implement this policy direction regarding seasonal and permanent residential uses. Section 4.1 verifies that the Zoning by-law is the key instrument to implement Official Plan policies. When a new use is sought by way of a Zoning by-law amendment, Council must be satisfied that the new use is reviewed against Official Plan policies and not the Committee.
16According to the Official Plan, the Zoning by-law is the key tool for determining land use. While the Resource Development Area permits seasonal and permanent use, the general intent of the Official Plan policies is to ensure that uses are sustainable and that there is a capacity in the lake to accommodate such uses. The Subject Property is located on the south shore of Frederick House Lake. This lake has been designated by the Ministry of the Environment as being "at capacity" in terms of further development. No expert evidence was provided by the Appellants regarding how the use of the park model trailer and the treatment of wastewater and sanitary services impacts on the lake. The evidence of Mr. Coulas was that while the travel trailer on the Subject Property was being used for storage, it could be used for habitation and in fact, had accommodated guests in the past. There is no evidence of the combined impact of the use of the park model trailer and the travel trailer on the lake. Therefore, the Tribunal is unable to determine whether the minor variance sought meets the requirements of the Official Plan.
Does the variance maintain the general intent and purpose of the City of Timmins Zoning By-law 2011-7100 (the "ZBL")?
17The Subject Property is situated in Zone "Residential Estate Type 1" ("RD-RE1"). Permitted uses within the RD-RE1 Zone include accessory uses, building structures, Bed & Breakfast Establishments, Garden Suite, Group Home, Home Based Businesses, Mobile Home-Double Wide and single detached dwelling.
18A park model trailer is only permitted in a Mobile Home Park Zone. The Mobile Home Park Zone provides a greater intensity of use and noise compared to a single use dwelling in the RD-RE1 Zone. The Mobile Home Park Zone provides for a higher density of units, on a larger property and a variety of outdoor accessory uses and amenities.
19The ZBL clearly differentiates between seasonal and permanent residential uses. The use of a park model trailer is seasonal. The testimony of Mr. Coulas confirmed its seasonal use. The Tribunal finds that the variance sought does not meet the general intent and purpose of the ZBL.
Is the variance desirable for the appropriate development or use of the land, building or structure?
20The proliferation of trailers used as seasonal dwellings throughout waterfront areas is undesirable from the perspective of the City. It has moved forward with enforcing its by-laws. It is clearly set out in the ZBL that park model trailers are permitted in the Mobile Home Park Zone and not the RD-RE1 Zone. These circumstances considered with the designation of the lake from the Ministry of the Environment that it is "at capacity" clearly indicate that the use of park model trailers (or other trailers for that matter) are not desirable for the development of the Subject Property.
Is the variance minor?
21In considering whether a variance sought is minor, regard must be had to its impact. The City is concerned with the proliferation of trailers on the waterfront in a zone intended for permanent use. Permitting such variance could have unintended consequences for the lake. Permission would also set a precedent for such use to continue and increase. Such use is contrary to policies of the Official Plan and ZBL and therefore, is not minor in nature.
FINDINGS AND DISPOSITION
22In determining this matter, the Tribunal accepts and adopts the uncontroverted planning evidence and expert opinion provided by Mr. Szczerbak. The Tribunal finds that the Appellants have not met the legal tests for a minor variance for the use of the park model trailer. As the main structure is not a permitted use, the minor variance for the use of the "shed" which should be incidental, subordinate, and exclusively devoted to the main use of the land as per section 3 of the ZBL, cannot be permitted.
ORDER
23THE TRIBUNAL ORDERS that the Appeal is dismissed.
"Jennifer Gold"
JENNIFER GOLD
MEMBER
"P. Tomilin"
P. TOMILIN
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.